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PRINCIPLES OF LAW 



FOR THE 



FARMER, MECHANIC, MERCHANT AND 
HOUSEHOLDER 



Being a Ready Work of Reference Concerning Such Legal 

Matters as are of Especial Importance to Laymen 

in the Ordinary Affairs of Life. 



BY 


ALEXANDER OTIS, 


ATTORNEY AND COUNSELOR AT LAW. 




• ' • • i« * »* 5 1 '• i ' ' ' ' 


''' ''' 5 ' 3 '' J ! 


ROCHESTER, N. Y. 


GODDARD, ANTHONY & COMPANY, 


1902. 






THE LIBRARY «F 
G8NGRESS, 

TWO COHES RECEIVE* 

MAY. 2 1902 


CfWWUHT ENTRY 

©LASS <* XXc. No. 
COPY B. 



COPYRIGHT, 1902, 

BY 

GODDARD, ANTHONY & CO. 



ISTTKODTICTIOK 



No man can safely attempt to be his own lawyer. Even 
men who are lawyers by profession usually prefer to have their 
lawsuits tried by a brother practitioner. It is an old and 
familiar saying that a man who acts as his own lawyer has a 
fool for his attorney. An incomplete knowledge of any sub- 
ject is dangerous to those who undertake to act upon it. On 
the other hand, no one can have a lawyer always at his elbow, 
whose advice may be taken at every turn in the swift-moving 
occurrences of human life; and legal advice is not usually 
obtained until matters have come to an aggravated pass. It 
seldom happens that the mischiefs of a lawsuit could not have 
been mitigated, or averted altogether, if one or both of the 
parties had a knowledge of their ordinary rights and duties, 
when the dispute began. 

It is, or should be, therefore, a part of the education of 
every man or woman owning property, or possessing rights of 
any description which are subject to loss, to have a general 
knowledge of ordinary legal principles, which control the 
common concerns of life. Such general principles are usually 
stated in technical language, for the use of legal practitioners, 
and are difficult both of access and comprehension to ordinary 
readers. The last twenty-five years have seen an overwhelming 
duplication and re-duplication of law books. When a case is 
decided on appeal, the judge deciding it writes an opinion, 
which, together with a brief statement of the facts over which 
the litigation arose, and a short summary of the arguments of 
counsel on either side, is "published, along with similar deci- 
sions and opinions, in serial law reports. A series of such 
reports is published on behalf of scores of courts of appellate 
jurisdiction in this country, including both the state and fed- 



iv Introduction. 

eral tribunals. A good reference law library should, there- 
fore, contain at least 10,000 volumes; and the number is being 
increased yearly at a tremendous rate. Of course, no lawyer 
can carry in his head any perceptible fraction of this vast vol- 
ume of legal disquisition; and when is added to the task, the 
necessity of knowing something about the statutes of the vari- 
ous states, and of Congress, some idea may be formed of the 
difficulties, not only of knowing the law, but even of knowing 
where and how to find it. Without digests, indexes, tables 
of cases and legal encyclopedias, the task would be hopeless. 

But this vast mass of legal disquisition is chiefly con- 
cerned with the application of well settled legal rules to the 
facts of specific cases. The rules themselves are, generally, 
not difficult of comprehension and are founded upon a sound 
basis of human custom and experience. It is a thorough 
knowledge of these general principles that the lawyer seeks 
to acquire, together with such information as he may of their 
practical application. 

It is the purpose of this volume to state in as simple and 
untechnical language as possible these general legal princi- 
ples, as they are believed to prevail in the states and terri- 
tories of the American Union, without any effort to trace their 
history and origin; or to discuss, at any length, their applica- 
tion to specific facts. It is believed that the average man who 
reads the book can get from it a general knowledge of his 
rights and liabilities, privileges and duties, under the law; and 
that the knowledge which he can thus acquire will assist him 
in protecting his rights and knowing what they are. A set of 
forms for use in the transaction of the more ordinary business 
concerns is appended and will be found useful. The book has 
been made to cover as wide a field of general information as 
possible; but, in the nature of the case, it cannot be more than 
a general summary. There is no royal and easy road to legal 
knowledge, any more than to any other kind of knowledge. 

Alexander Otis, 
Eochester, K Y. 



TABLE OF CONTENTS. 



CHAPTEE I. 

GENERAL, PRINCIPLES OP LAW. 

Sources of Modern Law — Blackstone's Commentaries — Changes in the 
Law — The Constitution — Acts of Congress — Treaties and Statutes 
— Ordinances — Customs and Decisions — General Legal Principles — 
The Great Maxim — Intent and Motive — Civil and Criminal Liabil- 
ity — General Scope of the Book. 

CHAPTEE II. 

PARENT AND CHILD. 

Who Are Children — Duties of Parents — Parents' Rights — Payment of 
Wages — Apprentices — Action for Seduction — Rights and Duties of 
Grown Children — Injury Done by Children — Cutting off with a 
Shilling — Correction of Children — The Writ of Habeas Corpus — 
Adopted Children — Wards — Guardian's Accounts — Illegitimate 
Children. 

CHAPTEE III. 

HUSBAND AND WIFE. 

What Constitutes a Marriage — Marriages as Contracts — Engagements 
— "Void and Voidable Marriages — Divorces — Dakota Divorces — Ali- 
mony—Husband's Duty to Support Wife — Criminal Conversation. 

CHAPTEE IV. 

SERVANTS AND EMPLOYEES. 

Wage Contracts — Master's Duty to Servants — Injuries from Fellow- 
Servants — Duties which the Master Cannot Delegate — Master's 
Responsibility to Third Parties for Servant's Acts — The Scope of 
Employment — Exceptions to the Rule — Masters and Contractors 
Distinguished — Servant's Own Responsibility. 
5 



vi Table of Contents. 

CHAPTEK V. 

AGENTS. 
Classification of Agents — Formation of the Relationship between 
Principal and Agent — Ratification — Agencies by Estoppel — How 
the Relationship may be ended — Duties of Principal to Agent — 
Duties of Agent to Principal — The Relation of Principals to Third 
Parties — Undisclosed Principals — Notice to Agent — Liability of 
Principal for Frauds of Agent— Execution of Contract by Agent— 
The Factor's Acts. 



CHAPTEK VI. 

WRONGS. 

What are Wrongs — Who is Responsible for Wrongs — Assault and 
Battery — False Imprisonment — Malicious Prosecution — Slander 
and Libel— The Rule in Libel— Publication— The Truth as a De- 
fense — Privileged Cases in Slander and Libel — Reports of Public 
Occurrences — Libel also a Crime. 



CHAPTEK VII. 

NEGLIGENCE, TRESPASS AND FRAUD. 

Negligence — Contributory Negligence — Imputation of Negligence — 
Injuries to Property — Saving Human Life — Injuries Causing 
Death — Trespass — Trespass Against Personal Property — Injuries 
by Animals — Fraud and Deceit — Nature of the Representation. 



CHAPTER VIII. 

NUISANCES. 

Public Nuisances — Encroachments That are Not Nuisances — Obsolete 
Public Nuisances — Noxious Trades and Callings — Prescription — 
Private Right of Action for Public Nuisances — Private Nuisances 
— Landlord and Tenant — Easements for Light and Air — Smoke — 
Noxious Vapors — Disagreeable Odors — Noises — Prescription — Mu- 
nicipal Corporations — Authorized Nuisances — Private Nuisances 
not Authorized when Property is Taken — Damages Paid in Ad- 
vance — Remedies for Nuisances — Abatement — Remedies at Law 
and in Equity. 



Table of Contents. vii 

CHAPTEE IX. 

ELEMENTS OF CONTRACT. 

What is a Contract — Meeting of the Minds — Form or Consideration- 
Illustration of what may be Legal Consideration — What Contracts 
must be in Writing — Parties — The Subject Matter — Wagers and 
Sunday Contracts. 

CHAPTEE X. 

BREACH OF CONTRACT. 

How a Breach May Occur — Rescission — Damages — Measure of Dam- 
ages — Interest — Arbitration — Accord and Satisfaction. 

CHAPTEE XL 

LIABILITY OF PERSONS HANDLING THE GOODS OF OTHERS. 

Bailments — The Degree of Care Required — The Rights of Finders — 
Bailee's Right to Li^n — Common Illustrations of Bailments — 
Warehousemen — Postmasters — Hotel Keepers — Common Carriers 
of Goods— Liability Limited by Contract— Baggage — Telegrams. 

CHAPTEE XII. 

SALES. 

Characteristics of a Sale — Classification of Sales — The Purchaser Must 
Look Out for Himself— Retention of Possession by Seller — Chattel 
Mortgages — The Passing of Title — Who Can Give Title — Warrant- 
ies — Implied Warranties — Measure of Damages in Warranty — The 
Remedies of a Seller for Breach — Stoppage in Transit. 

CHAPTEE XIII. 

PROPERTY IN ANIMALS. 

Wild Animals — Tame Animals — Game Laws — Domestic Animals — 
Branding — Sales, Mortgages, Insurance — Rights and Liabilities of 
Lessors and Others — Injuries to Animals— Fright— Liability of 
Railway Companies— Liability of the Owner— Cattle on the High- 
way—Remedies for Trespasses— Liabilities for Negligence — Dis- 
eased Cattle. 



viii Table of Contents. 

CHAPTEK XIV. 

PROPERTY IN BRAINS. 

Process of Securing a Patent — What is Patentable — Literary Prop- 
erty — Copyrights — How a Copyright is Secured — What Rights are 
Given — Liability for Infringement — Trade Marks — Registration of 
Trade Marks. 

CHAPTEK XV. 

FORMS OF DOING BUSINESS. 

Partnerships — What Constitutes a Partnership — The Responsibility of 
Partners— Partnership Property— Death of a Partner— Special 
Partnerships — Corporations — Joint Stock Companies — A Compari- 
son — Commercial Trusts. 

CHAPTEK XVI. 

STOCKS AND BONDS. 

Relations of the Stockholder to the Corporation — Nature of Stock — 
Watered Stock — Stock Subscriptions — Transfers of Stock — Embez- 
zlement and Theft of Stock— Wager Contracts and Margins — 
Increase and Reduction of Stock — Power to Borrow Money — 
Bonds— Coupon Bonds— Mortgage Deeds of Trust— Duties of the 
Trustee. 

CHAPTER XVII. 

CHECKS AND PROMISSORY NOTES. 

Commercial Paper — Negotiable Paper — Bona Fide Holders — Bills of 
Exhange — Notes— Checks — Certification of Checks — Indorsement- 
Transfers — Real Defenses — Presentment and Protest — Accommo- 
dation Paper. 

CHAPTEK XVIII. 



SURETYSHIP. 

Suretyship and Guaranty— Kinds of Guaranty— The Liability of a 
Surety — Consideration for Guaranty — Effect of Statute of Frauds. 



Table of Contents. ix 

CHAPTEK XIX. 

MONEY, BANKS AND LOAN ASSOCIATIONS. 

Banks— Governmental Control of Banking Institutions— General Du- 
ties and Liabilities in Making Collections — Special Deposits- 
General Deposits — Bank Officers — Insolvency — National Banks — 
Powers and Liabilities — Savings Banks — Pass Books — Trust Com- 
panies — Building and Loan Associations — Organization and Pur- 
pose — General Powers — Membership Rights and Liabilities — 
Withdrawals— Premiums— Foreclosure — Dissolution. 

CHAPTEK XX. 

INSURANCE. 

General Principles of Insurance — Familiar Terms— Insurable Interest 
— The Policy — Representations and Warranties — Waivers by 
Agents — Fire Insurance — Life Insurance — Accidents — Marine In- 
surance. 

CHAPTEK XXI. 

REAL ESTATE. 

Fixtures — Intention of the Parties— Trees — Crops and Ice — Rolling 
Stock and Other Doubtful Cases — Manure — Church Pews — Money- 
Land. 

CHAPTEK XXII. 

OWNERSHIP IN LANDS. 

The Entire Interest, Known as the Fee — Life Estates — Life Estates 
Created by Acts of Parties— Duties of a Life Tenant— Privileges 
of Life Tenant— Life Estates Created by the Law— Dower— Stages 
in Dower — Assignment of Dower — Barring Dower — Dower and 
Curtesy Contrasted — Jointure — Special Statutes. 

CHAPTER XXni. 

FUTURE INTERESTS IN REAL ESTATE. 

Interests which Arise when Life Estates are Determined — Reversions 
— The Law Prefers Fixed Interests. 



x Table op Contents. 

CHAPTEE XXIV. 

JOINT OWNERSHIP IN LANDS. 
Joint Tenancies— Tenancy in Common— Conflicting Rights of Tenants 
in Common — Waste by Co-Tenant — Division of Rents or Profits — 
Taking Farm Products — Attempts to Sell an Actual Interest in 
the Land— Adverse Title Acquired by Co-Tenant— Estates by the 
Entirety — Effect of Divorce on Entirety. 

CHAPTEE XXV. 

DEEDS AND MORTGAGES. 
Requirements of a Deed — Delivery of Deed, Escrows — Kinds of Deeds 
— The Description — Metes and Bounds — Mortgages — Mortgage or 
Deed? — Assignment of a Mortgage — Sale of Mortgaged Premises — 
Fund for Payment of Mortgage — Mortgages for Future Advances 
— Equitable Mortgages — Discharge of Mortgage — Foreclosure of 
Mortgage — Recording Papers. 

CHAPTEE XXYI. 

LANDLORD AND TENANT. 

Tenancies of Various Sorts — Tenants at Sufferance — The Tenant's 

Duties — The Landlord's Duties — Damage by Fire — Sub Leases — 
Summary Proceedings— Injury to Strangers. 

CHAPTEE XXVII. 

CROPS AND CROP CONTRACTS. 
Farming on Shares — Legal Status of Crops — Landlord and Tenant- 
Title to the Crop in the Tenant — Mortgagor and Mortgagee — 
Master and Servant — Tenants in Common — Principal and Agent — 
Partners and Joint Tenants — Buyer and Seller — Avoiding Legal 
Complications. 

CHAPTEE XXVIII. 

DISTRIBUTION OF PROPERTY AT DEATH. 
Estates of Intestates— Where there is a Will— A Short Test of Ca- 
pacity—How to Make a Will— Undue Influence — Effect of Subse- 
quent Marriage — Error— Familiar Testamentary Terms— Legacies 
-—Legatee as Witness— Afterborn Children— Gifts to Charities— In- 
heritance Taxes. 



Table of Contents. xi 

CHAPTEE XXIX. 

RIGHTS OF WAY AND OTHER BASEMENTS. 

Easements — Easement and License Distinguished — Creation of Ease- 
ments — Reservations and Restrictions in Deeds — Party Walls. 

CHAPTEE XXX. 

HIGHWAYS. 
Dedication — Prescription — Ways Laid Out by Statute — Discontinu- 
ance — Ownership in the Soil— Individuals, Public or Private Corpo- 
rations, Controlling- the Highway, Liable for Defects — Individuals 
may be Liable — Notice — Obstructions — Law of the Road — Turn- 
pikes — Bridges — Streets and Sidewalks — Canals — Railroads. 

CHAPTEE XXXI. 

WATER AND WATER COURSES. 
Public Rights — Public Rights not Exclusive — No Right to Use of 
Shore — Private Rights in Public Waters — Waters in which the 
Public has no Rights — Domestic Uses — General Purposes — Dams — 
Bridges and Culverts — Reasonable Use of Water — Irrigation — 
Damages for Flooding — Pollution — Artificial Water Courses — 
Artificial Accumulations of Water — Priority — Private Rights 
Taken for Public Purposes — Surface Water — Under Either System 
— Easements in Water — Licenses — Prescription. 

CHAPTEE XXXII. 

SOVEREIGN POWERS. 
The Sovereign Power — Treaties — Extradition — Tariffs and Foreign 
Commerce — Inter- State Commerce — Diplomatic and Consular 
Offices — The Executives — The Legislatures — Statutes — Construction 
and Repeal. 

CHAPTEE XXXIII. 

PARLIAMENTARY AND LEGISLATIVE PROCEEDINGS. 
Organization — Motions — Principal and Subordinate Questions — Privi- 
leged and Preferred Questions — Amendment and Reconsideration 
— The Vote — Committees — Enactment of Statutes — Approval and 
Veto — Every Man Presumed to Know the Law. 



xii Table of Contents. 

CHAPTEK XXXIV. 

PRIVATE RIGHTS UNDER THE CONSTITUTION. 

The Bill of Rights— Bills of Attainder— The Obligation of Contracts- 
Involuntary Servitude for Crime — The State and Religion — Writs 
of Habeas Corpus — Due Process of Law — Privileges and Immun- 
ities — Unconstitutional Laws — Other Constitutional Guarantees. 

CHAPTEK XXXV. 

STATE REGULATION OF PRIVATE RIGHTS. 

State Care of the Insane — Trades and Professions — Milk and Butter- 
Other Regulations of Sales — Private Business Affected with a 
Public Use — Hours of Labor and Wages — Trusts, Strikes and 
Boycotts— Municipal Ordinances— Regulation of the Liquor Traf- 
fic — Federal Exercise of and Restrictions upon the Police Power. 

CHAPTER IXXVI. 

BUSINESS ENTERPRISES CONDUCTED BY THE STATE. 

The Post Office— Schools— Boards of Health— Fire and Police Depart- 
ments — Enterprises which may be both Public and Private — 
Water Works— Gas and Electric Light Companies— Street Rail- 
ways — Where to Draw the Line — Law and Political Science. 



CHAPTER XXXVII. 

PRIVATE PROPERTY TAKEN FOR PUBLIC PURPOSES. 

Contract Rights Inferior to the Power — Limitations of the Power— 
The Public Use — Property Which May be Acquired — Extent of 
Damages — Who Receives the Money — Condemnation Proceedings 
— Due Process of Law. 



CHAPTER XXXVIII. 

PRINCIPLES OF TAXATION. 

Direct and Indirect Taxes— Land and Personal Property— The Pur- 
pose of Taxes— Who and What May be Taxed— The Locality Ben- 
efited — Apportionment of the Tax. 



Table or Contents. xiii 

CHAPTEE XXXIX. 

LEVY AND COLLECTION OF TAXES. 

Legislative Authority— The Tax Levy— Correction of Errors— Tax 
Liens— Tax Sales— Tax Sale Deeds. 

CHAPTEE XL. 

PUBLIC MORAL OBLIGATIONS. 

Payment of Debts— To Compensate for Public Services— Pensions- 
Recognition of Military Services — Our Pension System — General 
Pension Acts — Poor Laws. 

CHAPTEE XLL 

ELECTIONS. 

Federal Elections — Powers of the State Legislatures — Ballot Systems 
— Qualifications of Electors — Calling Elections — Nominations — 
Election Officers— Voting— Ballots— Majorities and Pluralities- 
Corrupt Practices — Punishment of Offenses. 



CHAPTEE XLII. 

PUBLIC OFFICERS. 

Who are Public Officers — Public Officers Classified — One Man Cannot 
Hold Two Incompatible Offices — Property Rights Incident to 
Office Holding — Qualifications for Office — Election and Appoint- 
ment — The Civil Service Laws — Preference to Veterans — Oaths 
and Bonds — Removals — Ministerial, Judicial and De Facto Offi- 
cers — Liability of Officers Making Arrests. 



CHAPTEE XLIII. 

PUBLIC CORPORATIONS. 

The County and the Town — Municipal Corporations — Power to Change 
the Charters — Ordinances and By-Laws — Municipal Contracts — 
Municipal Securities— Property of Public Corporations— Municipal 
Officers — Letting of Contracts 



xiv Table of Contents. 

CHAPTEK XLIY. 

COURTS OF LAW. 

Kinds of Courts — Kinds of Jurisdiction — Actions at Law — The Plead- 
ings — Trials — State Writs — Costs — Judgment — Executions — Proceed- 
ings Supplementary to Execution — Garnishment and Trustee Pro- 



CHAPTEK XLV. 

EVIDENCE. 

Four Short Rules— The Best Evidence— Circumstantial Evidence — A 
Remarkable Murder Case — Hearsay — Evidence Excluded for Pub- 
lic Policy— Children and Others as Witnesses— The Oath. 

CHAPTEK XLVI. 

EQUITY. 

A Remedy for Every Right— The Equitable Maxims— Characteristics 
of Courts of Equity — Accident — Mistake — Fraud — Notice — Equit- 
able Conversion — Adjustment — Specific Performance — Injunction — 
Accountings. 

CHAPTER XLVIL 

BANKRUPTCY. 

Control of the United States Government— Who May Become Bank- 
rupts — Involuntary Bankruptcy — Voluntary Bankruptcy — Part- 
nerships — Discharge in Bankruptcy — Administration of the Bank- 
rupt Estate — Proof of Claims — Division of the Estate — Preferences 
Under the Bankruptcy Act — Compositions — Discharges and Com- 
positions may be Revoked. 

CHAPTEK XL VIII. 

CRIMINAL LAW. 
Children and the Insane — Principals and Accessories — One Crime In- 
tended, Another Committed— Treason— Homicide — Excusable and 
Justifiable Homicide — Statutory Changes in Homicide — Arson — 
Statutory Changes in the Crime of Arson — Burglary — Statutory 
Changes — Larceny — Embezzlement — Statutory Changes in Lar- 
ceny — Robbery — Forgery — Perjury — Bigamy — Seduction — Rape. 



Table of Contents. xv 

LEGAL FORMS. 

Contract— Note — Bill of Sale— Power of Attorney— Form of Will— 
Sample Will — Deed with Full Covenants — Executor's Deed — Lease 
—Mortgage — Chattel Mortgage. 



PRINCIPLES OF LAW 



CHAPTEE I. 

GENERAL PRINCIPLES OF LAW. 

Sources of Modern Law — Blacks-tone's Commentaries — Changes in the 
Law — The Constitution — Acts of Congress— Treaties and Statutes 
— Ordinances— Customs and Decisions— General Legal Principles — 
The Great Maxim — Intent and Motive — Civil and Criminal Liabil- 
ity — General Scope of the Book. 

Religion deals with treasuries that cannot be broken into by 
thieves; and treasures that cannot be corrupted by moth or 
rust. Ethics form a system of moral philosophy, confessedly 
inapplicable to an imperfect state of society. Law must take 
the world as it is. instead of as it should be. It undertakes to 
protect earthly treasures and treasuries and to conserve, as far 
as it may, the well being of society in a confessedly imperfect 
state. It makes no pretension to divine origin, except in the 
sense that all that is best in human nature, comes from God. 
It does represent the combined worldly wisdom of ages and the 
practical experience of mankind in the science of government. 

SOURCES OF MODERN LAW. 

When the American Union came into being, it found two 
complete and well developed legal systems prevailing in the 
civilized world; similar in general outline, but differing in 
many essential details: — the Common Law of England, and 
the Civil Law of Continental Europe. The common law sys- 
tem prevailed in the thirteen original colonies, while that of 
the civil law was practiced in the Territory of Louisiana. The 
civil law was built upon the legal polity of the ancient Roman 
Empire. The common law originated in the old Saxon cus- 
toms and statutes. As our language was enlarged and en- 

17 



18 General Principles of Law. 

riched by the gradual adoption of Latin words, so our law 
was extended and developed by engrafting the enlightened 
principles of the Roman law upon our own virile but rude 
institutions. The thirteen original states adopted the princi- 
ples of the common law, as far as they were applicable to our 
conditions and institutions, together with the body of law and 
statutes, as it had become developed in the colonies, prior to 
the Revolution. Louisiana, when she came into the Union, 
brought the civil law with her. This has been one of the influ- 
ences resulting in a still further grafting of the civil law upon 
the common law in America. Where novel questions have 
arisen out of the ever varying kaleidoscope of human events, 
the courts have turned, especially in the newer states, to both 
systems of law, for instruction. 

BLACKSTONE'S COMMENTARIES. 

The great exponent of the common law was Sir William 
Blackstone, whose celebrated Commentaries were written dur- 
ing the earlier days of the American Revolution. Strange as 
it may seem, they are to-day quite as valuable to the American 
as to the English lawyer; and, probably, more so. To the 
latter they are merely an incident in the continuous develop- 
ment of the law. To the former they mark an epoch. They 
form a summary of the principles of the common law, almost 
at the very hour when we adopted them as ours. The Com- 
mentaries are of but little practical value to any one but the 
professional lawyer and the student of history. The attorney 
often discovers that the principles as laid down by Blackstone 
are the law of his case to-day; but they as often furnish a 
striking illustration of how far the law has changed and devel- 
oped. The world has moved since the days of Blackstone, and 
the law has moved along with it. 

CHANGES IN THE LAW. 

In Blackstone's day all holdings of real estate in the 
mother country arose out of feudal tenures. Feudal tenures 
in this country are almost wholly abolished. The criminal 



General Peinciples op Law. 19 

law of the eighteenth century has been so altered that an 
eighteenth century lawyer would hardly recognize it. The 
entire system of laws with regard to married women has been 
swept away, in most of the states. The entire system of a 
state religion, which formed no small part of the concern of 
eighteenth century law, was never transplanted to American 
soil. The whole law of corporations and corporate franchises 
was in its infancy a hundred years ago. 

And yet, when all this has been said, the fact remains that 
no man can be a professional lawyer who does not understand 
that which is, in the full light and knowledge of that which 
has been; and that the general principles of law prevailing a 
hundred and often two thousand years ago, remain to-day the 
rock bottom foundation upon which the whole fabric of mod- 
ern law is built, and without which it would come toppling to 
the ground, in the general chaos of anarchy. 

THE CONSTITUTION. 

The next great source of modern law is the Constitution 
of the United States and those of the several states, of which 
it is largely the prototype. The national government has only 
such powers as are conferred upon it by the Constitution of 
the United States. The governments of the several states, 
on the other hand, have all the powers of sovereignty, except 
in so far as they are restricted by the constitutions, state and 
national. The Constitution of the United States was framed 
by men of English training and French philosophy. It pro- 
vided safeguards to the people which the experience of the 
British nation had found necessary, in their struggles against 
arbitrary power. It breathed the spirit of the French Involu- 
tion. 

The state constitutions, while modeled on that of the 
nation, in many instances contain substantive law more prop- 
erly belonging to the realm of statutes. To engraft into the 
constitution what are strictly mere statutes, has become the 
fashion in many jurisdictions; the primary purpose being to 
give such statutes greater force and permanence. 



20 General Peinciples of Law. 

acts of congress, treaties and statutes. 
The treaties of the United States with foreign countries 
are made, by our Constitution, the law of the land. The acts 
of Congress, within its constitutional powers, and the statutes 
of the several states, form a vast and rapidly increasing body 
of law. Many legislators, and reformers who desire to become 
legislators, or to influence legislation, believe, or affect to 
believe, that there is no ill in human life for which there is not 
a remedy by statute; and in this belief lies much of the evil 
inherent in our superfluous legislation. But, in general, laws 
that do not meet the test of practical experience, either lie a 
dead letter upon the statute books or are amended or 
repealed, as the public demand it. 

ORDINANCES. 

In addition to the statutes are the acts, resembling statutes, 
of the legislative branches of municipal governments, which 
enact the minor local regulations, in the form of municipal 
ordinances and town by-laws, necessary to meet the needs of 
modern city and town life, under powers delegated by the 
legislature. These are frequently of more importance to the 
ordinary concerns of town dwellers than the acts of Congress. 

CUSTOMS AND DECISIONS. 

The law is constantly having added to it new regulations 
which do not arise in statutes at all; but grow up out of the 
customs of people in dealing with each other; and gradually 
become of binding force, either because the custom grows to 
be of long standing, or because it is recognized as proper and 
reasonable, in the decisions of the courts. 

Legal decisions, preserved in the written opinions of the 
judges, form the record of the law as it grows and develops. 
When legal principles have once been applied to a certain 
state of facts, the application in the particular case is consid- 
ered, in all similar cases arising in the same jurisdiction, as 
having force so controlling that it will generally be followed 
in subsequent cases. While courts reserve the power to reveise 



General Principles of Law. 21 

their own decisions, it is a power seldom and reluctantly exer- 
cised ; even though the rules formerly laid down seem to work 
a hardship. It is considered better to have any changes in 
the law which are found advisable by experience, made by 
legislature, rather than by the courts. This unwritten rule 
of courts of justice is known to lawyers under the name of 
"Stare Decisis;" and without some such practice the law 
would be a very uncertain quantity. To leave the decision of 
each case, as it arises, to the caprice, prejudice, or peculiar 
mental twist of each individual judge, would give to him the. 
despotic power of an Eastern cadi. 

GENERAL LEGAL PRINCIPLES. 

These are so many and various that this entire volume can 
do little more than give a rough outline of them, without 
much attempt to follow their origin, growth, or special appli- 
cation to specific states of fact. Some of them are older than 
the pyramids, were in force when the Chaldean shepherds 
watched their flocks under the stars, were hoary with age 
when they were embodied into the Pentateuch; while others 
have sprung into being out of the stress of modern life, and 
the special needs and uses of the present day and generation. 
Some arose out of ancient systems which have had their day 
and ceased to be ; were discussed in the courts moot and courts 
leet of the Saxon; were enunciated by the Roman praetor or 
the rescript of the emperor; were graven upon tablets of stone 
amid the clouds and thunders of Mt. Sinai; were concessions 
from princes, wrung at the sword's point, flashing into being 
in an uprising for liberty; were gradually developed by 
sober merchants and humble tradesmen, in the marts of trade 
and commerce. 

Some of the more general principles, however, may prop- 
erly find their place in an introductory chapter. 

THE GREAT MAXIM. 

The great underlying maxim of the law, out of which, 
directly or indirectly, almost all laws grow, is a paraphrase of 



22 General Principles of Law. 

the Golden Rule. It is that a man must use that which is his 
so as not to injure any one else. Reason, prudence and care 
are the great watchwords of the law. The man who conducts 
himself with reason, prudence and care will have but little 
concern with law or lawyers, unless he is injured by the fail- 
ure of some one else to do likewise. The lawyer and the judge 
enjoin these virtues with the same frequency and earnestness 
that the clergyman employs when he demands faith, hope, 
and charity from the world. If one man is injured by another 
in his person or property, in his good name and fame, in his 
private pursuits or public career, and comes into court, seek- 
ing redress, the crucial question almost always is: did the one 
or the other exercise or lack reason, prudence and care? Some 
acts have been, by the law, declared in themselves necessarily 
unreasonable, imprudent or careless. In other cases the ques- 
tion is an open one, to be decided by the special circumstances 
of the dispute. 

INTENT AND MOTIVE. 

In determining whether an act were reasonable, prudent 
or careful, the nature of the act itself must be understood, and 
in order to understand the act, the purpose and intent of the 
act must be discovered. The courts, therefore, have always 
looked with especial care to find out the intent and motive of 
the acts producing the results which call for their judgment. 
Motive and intent are both states of the human mind, indefi- 
nite and intangible, and even the distinction between them is 
often confused, both in morals and in law. A man takes my 
property, in order that he may give it to the poor. His motive 
is charitable ; but his intent is larcenous. In determining what 
is the intent of an act the law adopts the general guiding prin- 
ciple that a man must be presumed to intend the usual and 
necessary consequences of his willful acts. If a man point a 
loaded pistol at my breast, draw the trigger and I am shot, it 
is a legal presumption that that man intended to shoot me. 



General Principles op Law. 23 

civil and criminal liability. 
Here comes the chief dividing line between civil and crim- 
inal liability. If an injury is produced by accident, there is 
usually nothing criminal in the transaction. If it is done by 
malice and design, it is, usually, an act of a criminal nature. 
The punishment of crime is undertaken by the state on its own 
behalf. The injury, although to only one person, is a public 
injury. An act is made a crime only when it is of such a 
nature that, although only one man be affected, in his person 
or property, it tends to render all persons and all property 
insecure. 

GENERAL SCOPE OF THE BOOK. 

The general plan and scope of this book is to state in clear, 
and as far as possible, untechnical language, the rules of law 
applicable to the ordinary affairs of private life, under modern 
conditions in the United States, for the purpose of assisting to 
some degree, men who are not lawyers to conduct their affairs 
with the reason, prudence and care which the law requires. 
In the earlier chapters it is sought to cover, briefly, the field 
of private contracts, property and wrongs; and, in the later 
chapters, such public matters as most nearly concern the 
every-day life of the individual; to cover first the relation of a 
man to his wife, his children and his neighbors, and, second, 
his relation to the state and the privileges and protections 
afforded to him by the state. The tax gatherer goes into every 
home; the railroad and highway pass or cross every farm; a 
school house stands on every other four corners; the strong 
arm of the Constitution reaches out to protect every man in his 
daily pursuit of life, liberty and happiness. While this gen- 
eral plan has been followed, no distinct line of division has 
been attempted; for public and private rights, duties and lia- 
bilities grade, imperceptibly, the one into the other. ~No pre- 
tension is made to especial learning or originality; or to any- 
thing more than a rough and ready compilation of the princi- 
ples of law as they exist to-day in the American Common- 
wealth. 



CHAPTER II. 

PARENT AND CHILD. 

Who Are Children— Duties of Parents—Parents' Rights— Payment of 
Wages— Apprentices— Action for Seduction — Rights and Duties of 
Grown Children— Injury Done by Children— Cutting off with a 
Shilling— Correction of Children— The Writ of Habeas Corpus- 
Adopted Children — Wards — Guardian's Accounts — Illegitimate 
Children. 

This chapter, and the two succeeding, will be devoted to a 
discussion of the principles of law as they are applied to hap- 
penings within the family circle. Law is not something that 
stands far aloof from the everyday concerns of life. Few 
people realize how great a part of the law extends to our very 
firesides. Children, servants, marriage, courtship, meals, 
horses, bicycles, and a hundred other familiar matters, have 
been made the subject of long and painstaking study by law- 
yers. The skein of the law runs through every yard of life's 
fabric, interwoven through warp and woof; and law, as well 
as charity, begins at home. How far are parents responsible 
for the acts of their children? How far is the husband liable 
for the debts of his wife? How is the domestic relation en- 
tered into; and how is it broken? These are questions arising 
every day, within the family circle. In the present chapter, 
we shall attempt to discuss some of the principal features of 
the legal relations established between parents and children. 
In the old days the power of the parent was almost absolute; 
but modern conditions, especially in America, could tolerate 
no such doctrine. With the rights and interests of children, 
the law especially concerns itself, for the very reason that 
they are children, and, therefore, are not able to protect them- 
selves as might a person of mature years. 



Parent and Child. 25 

who are children. 

Young people are generally looked upon by the law as 
children, or, as the legal phrase has it, as infants, until they 
are twenty-one years of age. In some states a young girl 
becomes of age at eighteen years, and it may be said that, 
when a girl marries, although she has not attained twenty- 
one years, hor parents lose control over her. 

DUTIES OF PARENTS. 

Parents are said to owe three duties to their children; to 
protect them, to educate them and to support them. It is 
perhaps difficult to find legal authority for the statement that 
parents must protect their children, but in most of the states 
there are statutes which compel young children to attend 
school for a number of weeks each year; and for a failure to 
comply with this regulation, the parents may sometimes be 
punished. So, too, there are generally statutes or rules of 
law which compel parents to support their children, if the 
children are young and unable to support themselves. There 
is considerable doubt as to whether a father could ever be 
compelled to support a boy who had reached eighteen years of 
age and was strong and healthy. 

PARENTS' RIGHTS. 

While parents owe these duties to their offspring, it is 
also true that parents have certain rights in their children, 
the most important of which is the right to the child's wages. 
Many parents give their children their time, as the phrase 
goes, but this is of course, simply an act of generosity on the 
part of the parents to enable the young man or young woman 
to make a better start in life. It is on this theory of the 
parents' right to the child's wages that many actions at law 
for negligence are based. For example, if a boy ten years of 
age were walking along a road, and without fault on his part, 
were run down through the negligence of the driver of a 
wagon and his arm cut off, two actions at law would spring 
from this accident. Pirst, the boy would have his own action. 



26 Parent and Child. 

The damages here given would be to compensate the boy him- 
self for the pain suffered and for the loss of his arm, and they 
might easily run into the thousands. This action would be 
brought in the boy's name, but by a guardian or next friend 
appointed by the court. Second, the father of the boy would 
have a cause of action through the same accident. The father's 
damages, however, would be measured on the theory that they 
were to compensate him only for the loss of the boy's services 
during the latter's minority. They could scarcely reach a 
higher figure than five or six hundred dollars, as it would be 
unlikely that the boy after supporting himself could earn 
more than that sum for his parent during his minority. It 
would not be necessary in order to bring this action to show 
that the father actually expected to receive anything from 
the boy. Thus the accident might have happened to the son 
of wealthy parents who expected their child to go through 
school and college, and did not look to him for any wages. 
Kevertheless, the father's action could be brought, because 
after it had appeared that the father had the right to the 
boy's services, the court would not inquire whether or not he 
actually expected to profit by them. The law in such an action 
as this would not take into consideration the grief caused a 
parent by an injury to his child. 

PAYMENT OF WAGES. 

It will readily be seen that since parents are entitled to the 
wages of their children, it is the parent who is entitled to 
receive such wages as are paid to a child who is employed by 
some other person. Misunderstandings often arise under such 
circumstances, as for example, when a farmer who has hired 
a boy of eighteen or nineteen years, pays the weekly wages 
to the boy without taking into consideration the rights of the 
boy's father. The one safe way for a man who is hiring chil- 
dren, is to have an agreement with the parents of those 
children that the wages may be paid directly to the children; 
and it is of course much better to have this agreement in writ- 



Paeent and Child. 27 

ing; then if difficulty arises the writing could be displayed. 
Most parents will of course make no objections to the money 
being paid to the child, but occasionally a parent will demand 
the payment of the money directly to himself, and in such a 
case as this the employer must comply with the request. 

APPRENTICES. 

Parents may ordinarily, if they desire, enter into an 
agreement by which their child shall serve some other person 
as apprentice or bound boy. Ordinarily the person for whom 
the apprentice is working would be expected to pay something 
for the boy's services, but it not infrequently happens that 
the apprentice gains much benefit because he is taught a 
trade or business, and then sometimes he not merely receives 
nothing for his services, but is even expected to pay some- 
thing to the employer for the privilege of working with him. 
It is not in human nature that employers should treat appren- 
tices as well as their own children, therefore parents in bind- 
ing out children should be very careful to have a full and 
complete understanding as to what is to be done for the 
apprentice by the employer. This agreement should always 
be in writing and should provide for the furnishing of clothes, 
medical attendance, medicine, schooling and all other neces- 
sary and desirable expenditures on the part of the employer. 
An apprentice is commonly bound out until he is twenty-one 
years of age, but a shorter period may be agreed upon. 

ACTION FOR SEDUCTION. 

On this same theory that the parents of the child are 
entitled to its services, are based the actions for enticement 
and seduction. It is everywhere held that the father may 
bring an action for the seduction of a minor daughter who is 
in his house. In some states it is held that this action will lie 
in the case of a minor daughter whether she be at home or 
abroad. Some states go so far as to allow the father this 
action in the case of an adult daughter who has not yet left 
home, but it seems to be generally agreed that after an adult 



28 Pabent and Child. 

daughter leaves home, the father's right to bring an action 
for the redress of this wrong is gone. The girl does not in 
any event have an action for damages for this injury, since it 
is a maxim of the law that where one consents to an injury no 
harm is done to that person; in some states, however, where 
the seduction is accompanied by a promise to marry, the girl 
is allowed to prosecute a criminal action. We noticed in 
speaking of the case where through negligence a boy loses 
his arm, that the damages recovered by the father were based 
on his actual loss, that is to say, the lessening of the earning 
power of the boy during the remainder of his minority. In 
an action for seduction, however, the law is not satisfied to 
give damages which will merely compensate for the loss of 
services, but after such damages are proven, the court will fre- 
quently add additional damages which are known as puni- 
tive damages, or smart money. Thus the amount in such a 
case will occasionally be a number of thousands of dollars. 
The action for enticement is brought by a father where some 
person has wrongfully enticed a child to leave home. 

RIGHTS AND DUTIES OP GROWN CHILDREN. 

As children often remain in the homestead after they have 
passed twenty-one years of age, it occasionally happens that 
disputes arise between them and their parents, the grown 
children feeling that they ought to be paid for the services 
performed by them since reaching majority, and the parents 
feeling that they should receive board from their children 
since they have become of age. The law, perhaps in order to 
avoid these unpleasant disputes, has decided that where there 
is no special understanding between parents and children, 
neither side shall be able to make any claim against the other. 
The reasoning is that the services performed by the children 
after they are grown, will offset their board, and that the board 
will, on the other hand, be a proper payment for the services 
performed. Of course there is nothing to prevent a special 
agreement between parents and their grown children; thus 
parents may hire an adult child, paying for his services so 



Parent and Child. 29 

much a week or month, or on the other hand, an adult child 
may agree to pay to his parents so much a week for the board 
furnished for him at the homestead. It is onlv where no 
agreement has been made that the presumption arises that the 
board offsets the services. 

INJURY DONE BY CHILDREN. 

When a child breaks a window or does some other mis- 
chief, it is often asserted that the parents are liable; certainly 
it has been the custom so to suppose for many years, and this 
is probably because most people will answer for breakages and 
the like due to their children rather than enter into any 
unpleasant disputes with their neighbors. As a matter of fact, 
however, a parent is not liable in such a case as this unless he 
has in some way aided the child in the mischief or incited him 
to it. If any person be answerable for mischievous acts of this 
kind, it is the child himself, and an action could be brought 
against the child to recover for the injury. Sometimes it hap- 
pens that children have money in their own right, while their 
parents are poor, and under these conditions there are occa- 
sionally successful attempts to make the children themselves 
pay damages for injuries of this character. This question 
ordinarily would not be particularly important, but sometimes 
the mischief of the child goes so far as to cause the burning of 
a barn or the death of a valuable animal, and then it is impor- 
tant to know to whom one should look for repayment. 

CUTTING OFF WITH A SHILLING. 

We shall have occasion to speak more fully in a later 
chapter of the way in which a man's property is distributed 
when he dies; it will be enough to say now that children have 
no absolute right in the property of their father when he dies. 
If he leave no will, they of course take a part of the property. 
If there be a will, each child receives the amount given him 
in the will. It is entirely possible, however, for a father to 
make a will in which he gives absolutely nothing to one or 
more of his children. The custom used to be when one wished 



30 Parent and Child. 

to disinherit a child to leave that child a shilling for the pur- 
pose of showing that the omission was not accidental. This is 
probably a good way to indicate the desired result, but from 
this custom has risen a belief, which really is without founda- 
tion, that to cut off a child it is necessary to leave it a shilling 
or a dollar or the like. 

CORRECTION OP CHILDREN. 

Parents are entitled to use a reasonable degree of force in 
correcting children, and if, as is sometimes the case, there are 
unfortunate results, amounting even to the death of the child, 
yet, if the parent has been reasonable, he will not be liable for 
the injury done. This does not mean that parents may with 
impunity visit cruel and unusual punishments on children. In 
some cases over-zealous parents, who probably felt that they 
were doing right, have attempted to beat children with iron 
rods or do some similar cruel thing. If evil results flow from 
such acts as these, parents are liable just as though the blow 
had been struck to a stranger's child. Parents may also allow 
teachers to use a reasonable degree of force in correcting chil- 
dren, and by long custom it seems to be understood that teach- 
ers have this right. 

THE WRIT OP HABEAS CORPUS. 

This writ, though used under many circumstances, is of 
interest at this point only in as far as it is used for obtaining 
possession of children. If a child be abducted, or if it be 
seized by some acquaintance or relation who has no right to it, 
the parents of the child may secure from the court a writ of 
habeas corpus. This writ may be granted by the court at any 
time, week day or Sunday, night or day, and will provide in 
substance that the child be brought before the court to enable 
the court to determine which party is entitled to its possession. 
It occasionally happens that societies organized for the protec- 
tion and care of children, as for example, Children's Aid Soci- 
eties and Orphan Asylums, endeavor to control children to 
whom they really have no right, and under these circum- 



Parent and Child. 31 

stances the parents of the children are forced to bring a writ 
of habeas corpus. 

ADOPTED CHILDREN. 

It is held in most states that an adopted child has all the 
rights and privileges of an own child, including the right to 
share in the estate of its foster parents on their death. In the 
majority of cases this is probably what the foster parents 
desire, but it occasionally happens that the rights thus given 
to the adopted child are somewhat greater than the foster par- 
ents had contemplated: thus, for example, if a man die, leav- 
ing only a wife and one child, the child's share comprises more 
of the property than the wife's, if there be no will. This rule 
might be the same in case of the death of a man who had no 
children of his own, but had adopted one child. It is well, 
therefore, for those who have adopted children to bear in mind 
this principle of law, and to make such provisions in their 
wills in reference to their foster children as they see fit. It is 
best when a child is to be adopted, to have an agreement of 
adoption drawn and approved by the proper judge or officer, 
and then to have this agreement filed in a public office so that 
it may be a record of the adoption for all time, as it might be 
of great importance at some time, both to the foster parents 
and to the child, to consult such a record. It is not necessary, 
however, in order to adopt a child to go through this proceed- 
ing, for, as a general rule, if a child be introduced into a fam- 
ily and treated in all ways like other children, the law will 
look upon the newcomer as an adopted child. When a child 
is adopted, its own parents practically lose control over it, but 
the child does not lose all the rights it has in its own parents j 
thus, for example, an adopted child sometimes inherits from 
its foster parents and its own parents. 

WARDS. 

The relationship existing between a guardian and his ward 
is in many respects similar to that existing between parent and 
child. There are, however, several striking differences. In 



32 Parent and Child. 

the first place, a guardian is not responsible for the support of 
his ward further than to apply the ward's property to that 
purpose in so far as it be necessary. Secondly, inasmuch as 
the guardian is not obliged to support the ward, he is not enti- 
tled to claim the ward's services. 

GUARDIAN'S ACCOUNTS. 

Guardians are everywhere held to a strict accountability 
for any money of the ward which comes into their hands. Thi3 
money should be invested conservatively. The best invest- 
ment for money of this kind is probably a good first mortgage, 
and a guardian must never place his ward's money in business 
ventures of any kind or description. It is also true that a 
guardian may sell or mortgage his ward's real estate only with 
the express consent of the court, and if this consent be not 
given, the deed or mortgage is of no effect. Any money 
belonging to the ward, coming into the hands of the guardian, 
should be placed in a separate account in the bank, and not 
mingled with the moneys belonging to the guardian himself. 
This may be important, for several reasons; among others, 
because if a guardian placed money belonging to a ward in the 
bank together with his own money and the bank failed or was 
robbed, the guardian would be compelled to replace the ward's 
moneys which were thus lost. The proper form for an account 
of this kind is: "John Jones, guardian for James Smith." 
This is of course a general principle of law, applying not only 
to the guardian, but also to executors, administrators and 
trustees. 

ILLEGITIMATE CHILDREN. 

Under the rule in most states children born in wedlock or 
within the period of gestation, after the father's death, are 
legitimate. It is not necessary that they should have been 
begotten during wedlock. Other children are illegitimate. Of 
late years legislatures have shown a tendency to legitimatize 
as many births as possible; this movement has resulted in New 
York, for example, in a statute providing that illegitimate 



Pabent and Child. 33 

children may be made legitimate by the after marriage of 
their parents, though even then these children are not in quite 
as good a position as to taking property as are children born 
in wedlock. An illegitimate child may generally inherit prop- 
erty from its mother. 



CHAPTEE III. 

HUSBAND AND WIFE. 

What Constitutes a Marriage — Marriages as Contracts—Engagements 
— Void and Voidable Marriages — Divorces— Dakota Divorces — Ali- 
mony—Husband's Duty to Support Wife— Criminal Conversation. 

With all of the change and progress of the century, per- 
haps that which affects the home most directly is the gradual 
change, in fact, the revolution, in the legal view of the rela- 
tion of husband and wife. A century ago a woman lost her 
individual identity, in the eye of the law, by marriage. Her 
personal property became her husband's as soon, literally, as 
he could lay his hands upon it. He had the complete and 
absolute control over her real estate, as long as the relation 
continued. In the ancient days, when these rules of law 
originated, the rule as to personal property was not so harsh, 
as such property was of little comparative value; and the 
practical working of the law was not so bad, perhaps, as it 
seems in the modern view of things. However this may be, 
nearly every state in the Union has done away with the dis- 
abilities of married women; and the year 1848 marks 
the period when the gradual change in the legal status 
of womankind found general expression in legislative enact- 
ments throughout America. The legal learning incident to 
the problems arising out of marriage settlements, necessary 
before that time to protect women who were about to marry 
in their property rights, was largely done away with by these 
statutes. Instead of the family property belonging entirely 
to the husband, it is now frequently customary to let the wife 
hold the purse strings altogether. When a man failed in the 
old days, his wife failed with him. It is, to-day, not an excep- 
tional thing that the wife of a bankrupt, whose liabilities run 

34 



Husband and Wife. 85 

up into the hundreds of thousands, remains a very wealthy 
woman. The old system was not without its practical advan- 
tages and was not always as harsh or as unjust as it is 
described; but the new system has come and come to stay. 

WHAT CONSTITUTES A MARRIAGE. 

It is sometimes said that the deliberate consent of compe- 
tent parties to take each other at the present time as husband 
and wife constitutes a marriage. This is of course merely 
what is commonly known as a common law marriage, though 
it is as binding as a marriage which is celebrated in church. 
It should be noted, however, that to secure a valid common 
law marriage the agreement of the parties must be that they 
are to be husband and wife at the time the agreement is made, 
and this agreement, therefore, differs materially from the 
ordinary engagement to marry, which looks to a future time. 
It will be seen from the definition given that the services of a 
clergyman or justice of the peace are not necessary to com- 
plete a common law marriage; nor is it even essential that 
there should be a witness. Such marriages, however, are com- 
monly looked upon with disfavor by reputable people, and 
apart from this are most undesirable, because it is always hard 
to establish that a common law marriage has taken place, and 
by reason of this difficulty valuable rights and inheritances 
are not infrequently lost to the children of such unions. 
There has been a tendency of late in some states to pass stat 
utes lessening the effect of these common law marriages by 
providing, for instance, that certain papers be filed or that 
the marriage be made public in some other way before its 
validity be established. As a general rule, however, these 
common law marriages, when established, are equivalent to 
the usual church ceremony. 

MARRIAGES AS CONTRACTS. 

A marriage is of course a contract, but it is also something 
more; therefore it is incorrect to treat a marriage as though 
it were a mere contract or agreement. A simple illustration 



36 Husband and Wife. 

will show wherein marriage contracts differ from other con- 
tracts; if Mr. Smith met Mr. Brown and offered to sell the 
latter a horse for one hundred dollars, and Mr. Brown agreed 
to buy at that price, a contract is completed; nevertheless, 
before the horse changed hands the parties may come together 
and agree to rescind the contract, that is, not carry it out. 
This recission would be legal and binding. On the other hand 
everybody knows that when a marriage is entered into, the 
parties cannot merely agree that it shall be no longer a mar- 
riage; it w r ould of course be necessary to secure a divorce or 
go through some similar legal proceeding. 

ENGAGEMENTS. 

In law marriages are called contracts of marriage; and 
engagements, contracts to marry. We have noted that a mar- 
riage differs considerably from other contracts, but this is not 
true of the contract to marry or engagement, which is com- 
monly looked upon by the law in about the same light as any 
other contract. Actions for breach of contract to marry, or 
as they are commonly known, breach of promise suits, have 
always been frequent and commonly attract an unusual 
amount of attention in the neighborhoods in which they are 
brought. In illustration of the attitude taken by the courts 
towards these cases, we may refer to two rather amusing 
breach of promise suits brought in New York state. The two 
cases taken together indicate that to enter into an engagement 
it is not always necessary that the man expressly and by word 
of mouth, propose to the woman, but that if this request be 
lacking, the actions on his part indicating such a desire must 
be very strong. The earlier of these two cases, Homan against 
Earle, in which the court found an engagement, though no 
express proposal had been made, gives the following sum- 
mary of the circumstances on which the young woman relied 
to make out her case : 

"There were rides and walks and frequent visits, extend- 
ing sometimes until late in the evening; there was language 
"of endearment and such caressing as might be expected 



Husband and Wipe. 37 

"between lovers, accompanied with expressions by the defend- 
ant indicative, to say the least, of a desire that the plaintiff 
"would become his wife. He told her that he intended to marry 
"again at the end of a year after his wife's death; that he and 
"his wife had talked it over before her death, and that his 
"wife had said something which he conld not tell her then, 
"but which she would some day know. He described to her 
"the kind of a wife he intended to marry, and significantly 
"said that he knew of such a one, the plaintiff answering the 
"description. He told her that he expected she would some 
"'day know all his business and various other expressions of a 
"similar significance. After this had continued about two 
"months, upon an occasion when the defendant expected to 
"leave home for a few days, the subject of their relations was 
"alluded to, when the plaintiff told him he had said many 
"things which she thought meant a great deal, but he need 
"not feel under any obligation from what he had said, and 
"that he was free and had his liberty. He only answered at 
"the moment that he regretted that she had misunderstood 
"him, without explaining in what respect she had misunder- 
stood him; but he drew his chair nearer, put his arm around 
"her, and told her that he thought a great deal of her; he 
"remained until quite late, and said he did not want to go 
"home. Upon his return from his journey he immediately 
"called at her house, and finding her absent, engaged in her 
"avocation of dressmaking, he went where she was at work 
"and was very cordial, kissing her upon meeting and parting, 
"told her he had been very lonely, etc. He was intending to 
"be absent a few days again, and requested the plaintiff to 
"write to him. She declined, saying he would know his mind 
"better in the fall. Upon his return he made a visit, contin- 
uing late in the evening. At this visit, according to the 
"plaintiff's evidence, he made a formal declaration of love. 
" 'He said he loved me, and I was all the world to him; he 
" 'asked me if I loved him ; * * * if I could return it. I 
"'said I could, and did.'"' 

Some years later a similar breach of promise suit was 
brought in !N"ew York, where again it was impossible to show 
any direct request to marry, and the attorney of the young 
woman undoubtedly relied largely upon the decision of 
Homan against Earle. This case is known as Yale against 



38 Husband and Wife. 

Curtiss, and while it appears there that Mr. Curtiss had occa- 
sionally accompanied Miss Yale to prayer meetings and band 
concerts in the village in which they lived, and had taken her 
driving and paid her a number of slight attentions, it was held 
that there had not been any offer of marriage on his part. 
The last named case gives a rather interesting and picturesque 
account of village life in iSTew York to-day. It may be found 
by any who may have access to a good law library in volume 
151 of the Eeports of the New York Court of Appeals, at 
page 598. 

VOID AND VOIDABLE MARRIAGES. 

Certain marriages, or rather illegal attempts to- marry, are 
designated by the law as void marriages. As illustrations of 
void marriages, we may speak of the cases where a person who 
is already legally married attempts to marry again, and where 
near relatives attempt to contract a marriage. The rules as to 
what marriages are bad by reason of blood relationship vary 
in different states, but in general it may be said that the law 
does not object to unions between first cousins, while it will 
not tolerate marriages between uncle and niece, or aunt and 
nephew or between persons who are in the direct line of 
descent; that is to say, a marriage between a great grandfather 
and great granddaughter would be bad, as would of course a 
marriage between brother and sister. There are certain other 
causes which render a marriage voidable ; that is to say, it is a i 
good marriage until such time as an action is brought to set) 
it aside, or, as is said in law, to annul it. Then the marriage 
is wiped out from the beginning, save that provision is some- 
times made for the legitimacy of children. The causes which, 
render a marriage voidable must arise before the marriage. 
Some of these causes are, in most states, insanity, force or 
fraud in procuring the marriage, want of age in either or both 
of the parties. The age limit varies in different localities, run- 
ning usually from fourteen to eighteen years. The insanity 
here referred to must be a mental lack existing before the 
marriage is contracted; insanity arising after marriage would 



Husband and Wife. 39 

not be sufficient to secure annulment. By the words force 
and fraud, as here used, are meant such force or fraud as 
would go to the very essence of the marriage contract. For 
example, if a man fraudulently gave a woman to understand 
that he was wealthy and well connected, where, as a matter of 
fact, he was poor and of an indifferent family, this would not 
be sufficient fraud for the setting aside of the marriage. It 
has been held recently that where a young man represented 
in courting a young woman that he was earning an honorable 
living, and it appeared to his bride soon after the wedding 
that he was, in fact, a professional gambler, there was suffi- 
cient ground to set aside the marriage for fraud. 

DIVORCES. 

A divorce differs from an annulment of a marriage for one 
of the causes of which we have been speaking, because the 
divorce is granted for some reason which arises after marriage. 
There is probably no one branch of the law which exhibits 
greater differences in the various states of the union than this 
subject of divorces. In South Carolina it is practically impos- 
sible to obtain a divorce, while in some of the western states a 
divorce will be given for incompatibility of temper, which 
term is stretched to cover almost any little disagreement 
between husband and wife. It is probably true that in every 
state of the Union, except South Carolina, adultery is a suffi- 
cient ground for divorce. Most states, too, recognize two 
kinds of divorce, known as absolute divorce and as partial 
divorce. The absolute divorce puts an end to the marriage as 
of the time the decree is entered, and the court commonly 
gives leave to the innocent party to remarry. In the Eastern 
states absolute divorce is allowed for very few causes, while in. 
the West, such dissolutions of wedlock are frequently secured 
on trivial grounds. The partial divorce, on the other hand, 
which is usually granted for desertion or cruelty or a like 
cause, is really not a dissolution of the marriage, but rather a 
direction by the court that after that time the parties shall 
live apart. Thus the dower right of the wife is not affected 



40 Husband and Wife. 

by the partial divorce, while in certain circumstances an abso- 
lute divorce will entirely cut off a wife's dower. In many 
states husband and wife may enter into a contract known as a 
separation agreement, which furnishes about the same results 
as a partial divorce. Usually the courts will not sanction a 
separation agreement unless the parties are already separate; 
that is to say, the law will not permit parties who are living 
peaceably together to agree to separate, though if they aro 
already separated, they may agree to continue apart. 

DAKOTA DIVORCES. 

As the rules for the granting of divorces are so much 
stricter in the eastern states than in some western localities, it 
has become a custom for parties who desire to obtain a divorce 
for a cause not recognized by their own state, to establish a 
residence, by a few weeks' stay, in one of the western states, 
and there sue for divorce. Because of the ease with which 
these separations were obtained in Dakota before its division 
into two states, these decrees are sometimes spoken of under 
the general term of Dakota divorces. The effect of these 
judgments may best be illustrated by an example. Suppose 
that Mr. and Mrs. A are citizens of New York State, and Mr. 
A wishes to obtain a divorce for some cause which is not recog- 
nized by the courts of New York ; he would then go to a west- 
ern state and live there for some six weeks or two months to 
establish a residence. Then he would commence his action 
for a divorce. Assume that the action is commenced in the 
state of South Dakota; then in order to make the resulting 
divorce one which will be recognized in New York state as 
binding, it would be necessary that one of two things should 
happen: First, the papers should be served on Mrs. A within 
the state of South Dakota. Second, Mrs. A could direct her 
attorneys to enter an appearance for her in South Dakota. In 
either one of these cases, a divorce, if granted by a South 
Dakota court, would be recognized as valid in New York. In 
the majority of cases, however, the husband in South Dakota 
is unable to serve papers on the wife within the state of South 



Husband and Wife. 41 

Dakota, and the wife will not enter an appearance. There- 
fore the resulting divorce, while it is valid in South Dakota, is 
not recognized as a good divorce in New York. It has hap- 
pened that a man who had secured one of these western 
divorces and by virtue thereof believed himself free to 
remarry, returned to New York, remarried there, and then 
was convicted in the New York courts of bigamy. 

ALIMONY. 

Alimony is the money which the husband is directed to 
supply for the support of the wife when an action for divorce 
or an action to annul a voidable marriage is commenced. Ali- 
mony is of two kinds, temporary and permanent. Temporary 
alimony is supposed to yield the wife what she needs for her 
support during the progress of the action, and for the pay- 
ment of her lawyer; the amount cannot be definitely fixed, as 
it depends entirely upon the circumstances of the husband and 
the needs of the wife. In one case, where it was shown that 
the wife's health demanded a visit to the South, temporary 
alimony was made large enough to enable her to spend a 
winter in Cuba. Permanent alimony is a provision for the 
support, of the wife after a judgment of divorce or a judg- 
ment annulling a marriage. It is usually fixed at about a 
quarter or a third of the husband's income. Both temporary 
and permanent alimony are in the discretion of the court, and 
are sometimes refused where it appears that the wife has been 
at fault. 

HUSBAND'S DUTY TO SUPPORT WIFE. 

A husband is under an absolute duty to support his wife, 
and if he do not provide the necessary articles, the wife may 
buy them herself, acting for that purpose as the husband's 
agent. It is of course only such articles as the law deems 
necessary, which the husband is obliged to provide for the wife, 
and what articles are necessary, will depend almost entirely on 
the station of life of the parties. Thus it has been held that a 
silk dress and jewelry would be necessary for the wife of a 



42 Husband and Wife. 

wealthy man, whereas it is manifest that a silk dress would not 
be necessary for the wife of a day laborer. Generally speaking, 
the word "necessary" includes such articles as the parties in 
question have been accustomed to make free use of during 
their married life. If a wife leave her husband without just 
cause, the husband's duty to support her ceases until she 
returns to him. If, however, without having committed any 
serious fault, she offer to return, the husband must then receive 
her and provide for her, or if he do not, his liability to provide 
necessaries for her will revive. On the other hand, if a hus- 
band, by his cruelty, drive his wife from the house, she takes 
his credit with her and may obtain necessaries for which he 
will be chargeable. It has been held that where a wife sold 
the supplies provided for her by her husband, it would be 
sufficient if the husband sent her food, meal by meal. A 
tradesman may ordinarily with safety furnish groceries, pro- 
visions, clothes and similar articles to a wife who is living with 
her husband, and charge these articles to the husband, or if 
the storekeeper desire, he may of course charge them directly 
to the wife ; but in that case, he will be obliged to look to her 
for payment. If a husband and wife have been separated, or 
if a tradesman have received notice from a husband that he 
must not furnish goods to the wife, it behooves the tradesman 
to act with great caution, for in either of these cases to recover 
against the husband, he will have to show, not merely that the 
goods were ordered by the wife, and were necessaries, but also 
that the husband was under a duty to support the wife when 
the articles were sold, and that the husband had not furnished 
the necessary supplies from elsewhere. In a case where a 
tradesman furnishes goods to a wife under prohibition from 
the husband, or where the husband and wife are not living 
together, the merchant will often have a hard row to hoe to 
establish his recovery against the husband. 

CRIMINAL CONVERSATION. 

This is the name of the action brought by an injured hus- 
band against an adulterer; it will lie both when the wife is 



Husband and Wife. 43 

forcibly ravished and where the wife consents to the wrong- 
ful intercourse. Theoretically the husband sues to recover 
damages for the loss of the affection, service and companion- 
ship of the wife. It may appear that as a matter of fact the 
wife's ability to serve and aid the husband has not been dimin- 
ished, or if at all, only in a slight degree. Nevertheless, the 
law will in such cases grant substantial damages, much as 
punitive damages are given in the action for seduction, with- 
out especial reference to the actual loss of services. 



CHAPTEE IV. 
SERVANTS AND EMPLOYEES. 

Wage Contracts— Master's Duty to Servants — Injuries from Fellow- 
Servants— Duties which the Master Cannot Delegate — Master's 
Responsibility to Third Parties for Servant's Acts — The Scope of 
Employment — Exceptions to the Rule — Masters and Contractors 
Distinguished — Servant's Own Responsibility. 

Under the old English notion, any person who worked for 
another was a servant, and the class distinctions of the old 
times have left their impress upon the law, long after the 
distinctions themselves have been largely removed. Even the 
domestic servant, in this country, is scarcely within the 
doctrines of the old law, which gave a cause of action to a 
man whose servant had been enticed away by another, though 
the cause of action still, theoretically, exists. But it is out of 
the old notion of the close relation between the master and the 
servant that the legal doctrines which hold employers respon- 
sible for the careless acts of their employees, when those acts 
are done within the scope of the particular employment, have 
arisen. It is at this point that the rules of law begin to look 
beyond the home circle. The domestic servant is in many 
senses a member of the household; but the farm laborer may 
never enter the house at all; and, of course, there is no domes- 
tic relation between the employees in a factory and the stock- 
holders in the corporation which owns it. Whenever a man 
employs another to work for him he comes into legal relations, 
not only with the servant himself, but with all persons 
with whom that servant may have dealings, in his behalf. He 
is bound to reason, prudence and care in the selection of his 
servant, and in his dealings with the servant selected; and he 
is frequently responsible for any lack of reason, prudence and 
care which that servant may exhibit in doing his business. 

44 



Servants and Employees. 45 

wage contracts. 

Contracts by which servants are hired do not differ par- 
ticularly from any other legal agreements. Competency and 
industry are always assumed on the servant's part, and for 
lack of these he may be discharged without notice. It is 
therefore true that no employer will be compelled to keep a 
drunken servant, and this vice will be ample excuse at any 
time for the servant's discharge. Wage agreements are what 
is known by the law as entire contracts, in other words, if 
the servant expects any wages he must fulfill the entire con- 
tract. If any employer engage the services of a servant for a 
year and the understanding be that the servant is to be paid 
three hundred dollars for the year's work, then the servant 
must work through the whole year, and if that servant leave 
at the end of six months without just cause, he will not be 
entitled to recover any part of his wages. There is of course 
an exception to this rule in case the servant be compelled to 
stop work because of illness, or where the period of service is 
interrupted by the servant's death. If a servant who had 
engaged himself for a year became ill at the expiration of 
three months and could not work any more, he could bring 
an action against his employer for the three months' service, 
and, while strictly speaking that action would not be based 
on the contract of service, nevertheless the court would be 
likely to grant a verdict not varying greatly in amount from 
the proportion of the year's earning under the contract which 
would be represented by the three months' service. A similar 
question is presented to the court where a servant dies before 
his term of service is completed. In a well known case a 
skilled workman entered into an agreement with the propri- 
etors of glass works to do a certain kind of work for them for 
a year, but was unable to complete the contract by reason of 
sickness and death. In the action brought by the workman's 
executor the court held that the executor would be entitled 
to recover for those services actually performed and gave him 
damages at the rate agreed upon in the contract. It is not 



46 Servants and Employees. 

often, of course, that contracts of service are made for so long 
a period as a year, the more common term being for months 
or weeks, but the same rule holds true in these contracts for 
lesser terms; thus a servant could not work two weeks under 
a contract calling for a month and then demand his pay for 
two weeks, unless his absence were due to sickness or some 
other valid excuse. 

MASTERS' DUTIES TO SERVANTS. 

In law a person employing servants is commonly desig- 
nated as a master, and it is out of the master's responsibility 
to his servants and the master's responsibility to third parties 
for actions of his servants that the most important questions 
relating to servants arise. Everybody knows that the courts 
are continually called upon to decide cases in which servants 
claim damages against their masters because of injuries 
received from defective machinery, appliances and the like, 
and that there is also a large class of cases based upon the 
claims against masters, of outsiders who claim to have been 
injured by reason of the negligence or wrong-doing of serv- 
ants. 

Looking first at the responsibilities of the master to his 
servants it is a general rule that the master must use ordinary 
care in selecting and repairing tools, appliances and life-sav- 
ing devices; he must provide a safe place in which the serv- 
ant is to work ; he must secure competent servants and enough 
of them to render the work safe ; he must, where the number 
of servants renders this course advisable, formulate proper 
rules; he must adopt practicable improvements which tend to 
render the work of servants more safe. Thus, for example, if 
a railroad company keep on one of its locomotives a boiler 
known by the company to be defective, a fireman working on 
the locomotive would have a cause of action against the com- 
pany for injury received from the bursting of the boiler; 
again, a railroad company which sent a train down a heavy 
grade without enough brakemen to man the cars properly, 
would be liable to one of its employees injured by the run- 



Servants and Employees. 47 

ning away of the train; for the third example, a company of 
stonecutters employing workmen in the quarry overhung by 
rocks, which, to the knowledge of the company, were liable to 
fall at any moment, would be answerable to an employee 
injured by the fall of one of these overhanging rocks. In 
each of the cases stated assume that the injured employee did 
not have knowledge of the danger; this is an essential assump- 
tion, because the rule is that where the servant knows of the 
danger which is threatening him in his employment and con- 
tinues without objection to do the work, he himself contrib- 
utes to an injury received, and therefore cannot claim dam- 
ages against the master. Thus, in the case of the fireman 
injured by the bursting boiler, if the fireman himself had 
known for a long time of the impending danger and had 
nevertheless, without objection, remained at his post, there 
could not have been an action against the company. There is 
still a further variation upon this rule, to the effect that if an 
employee complaining to the master of a dangerous appliance, 
be assured by the master that the needed repair will be made, 
the employee will then be justified in remaining in the master's 
service a reasonable time to permit the making of the prom- 
ised repairs. Therefore, in a case where a man was at work on 
a stamping machine, and reported to the employer that a die 
on the machine was loose and liable to cause injury, and 
thereupon received from the master assurance that it would 
be attended to at once, the employee would be entitled to 
remain at work for a time, and if then, without other negli- 
gence on his part, he were injured, he would still be entitled 
to bring his action against the employer for the injury. The 
mere fact, however, that the servant had reported a defect to 
the master would not entitle that servant to continue indefi- 
nitely in the use of the defective machine; he could at best 
remain a reasonable time and if the court decided that he had 
overstepped the bounds of care and reason in remaining at his 
work too long, his action for damages would fail. This rule 
that the servant must not in any way by his own carelessness 



48 Sekvants and Employees. 

contribute to the injury is only a branch of the rule of which 
there will be occasion to speak later, that in an action for neg- 
ligence the plaintiff must show not merely the negligence of 
the defendant, but also that he himself has been free from 
negligence which has contributed to the injury. 

INJURIES FROM FELLOW-SERVANTS. 

A most important limitation on the master's responsibility 
for injuries received by the servant is found in the rule that a 
master is not answerable to a servant for injuries received by 
that servant at the hands of fellow-servants, or through their 
negligence. Thus, if a conductor on a railroad train be 
injured by the negligence of the engineer on the same train, 
the conductor would not have any action for damage against 
the railroad company, because the injury was received through 
the negligence of a fellow-servant. For a clear understanding 
of this rule, however, it must be added that the master benefits 
by this exception only when the servants are employed by the 
same master, and when they are as the law says, "in the same 
common employment." 

These two qualifications may be illustrated by other 
examples. If the A railroad and the B railroad both 
used the same depot in a certain city, and an engineer 
employed by the B railroad were injured by the negli- 
gence of a switchman employed by the A railroad in failing 
to mahe a proper switch connection, the engineer would have 
a cause of action against the A railroad company. While the 
servants here are fellow-servants, they are not employed by 
the same master. To show what is meant by the term a in the 
same common employment," suppose the case of a wealthy 
man who owns a large building in a city; in the building are 
employed a janitor and an elevator man; the janitor in going 
from one floor of the building to another frequently rides in 
the elevator. One day, through the negligence of the elevator 
man in handling his car, the janitor is injured; this is clearly 
a case where fellow servants are employed under the same 
master and are also in the same common employment, and the 



Servants and Employees. 49 

janitor would not be allowed to secure damages against the 
owner of the building. Now, change the statement of facts a 
little: the man who owns the building also employs a coach- 
man, and one morning while the owner of the building is 
being driven down town, his coachman carelessly runs down 
and injures the janitor who is walking to his work in the 
building. Here again the servants are clearly under the same 
master, and in a sense they are also fellow-servants, but they 
are not in the same common employment; and in this later 
case the janitor would be allowed to recover damages against 
the owner of the building, although the injury was actually 
inflicted by the coachman, on the theory that the master would 
be responsible for the servant's act. It is somewhat difficult 
to explain other than by examples what is meant by the term 
"in the same common employment." This term was once de- 
fined by a learned English judge in the following manner: 

"That principle I take to be that a servant, who engages 
"for the performance of services for compensation, does, as 
"an implied part of the contract, take upon himself, as between 
"himself and his master, the natural risks and perils incident 
"to the performance of such services ; the presumption of law 
"being that the compensation was adjusted accordingly, or, in 
"other words, that these risks are considered in his wages; 
"and that where the nature of the service is such that, as a 
"natural incident to that service, the person undertaking it 
"must be exposed to risk of injury from the negligence of 
"other servants of the same employer, this risk is one of the 
"natural perils which the servant by his contract takes upon 
"himself as between him and his master." 

Possibly a shorter, though by no means so accurate, defi- 
nition would be that servants are in the same common employ- 
ment when one of them, as a reasonable man, must be pre- 
sumed in accepting the employment, to weigh in his mind 
against the benefits expected from his wages, the liability of 
injury at the hands of the other servant. It is manifest that a 
man engaging himself to serve as janitor in a building, would 
at once wonder whether or not the employee in charge of the 
elevator in which he (the janitor) would be obliged to spend 



50 Servants and Employees. 

so much time, would prove careful aud competent; whereas, 
on the other hand, no man agreeing to work as a janitor in a 
building could ever be supposed to fear that he might some 
day be injured by being run down on the street by the car- 
riage which happened to belong to the owner of that building. 

DUTIES WHICH THE MASTER MAY NOT DELEGATE. 

This rule as to fellow-servants requires the further state- 
ment that there are certain duties which a master will not 
be allowed to delegate to servants, and that for negligence in 
the performance of these duties, whether by himself or by one 
of his servants, the master will liable to those employed by 
him. The master must himself buy his tools and appliances and 
provide a place in which to work, and he will not be allowed 
to fall back on the rule that he is not liable to a servant for 
injuries received at the hands of a fellow-servant, where the 
injury complained of came from the performance by the fel- 
low-servant of one of those duties which are peculiarly in the 
province of the master. For example, a master in New York 
owned a factory in another city of the state. Over this factory 
he placed a superintendent who hired and discharged the 
hands, bought and repaired the machinery and assumed the 
entire charge, only making regular reports to the master. The 
elevator in the building occupied by the factory fell into dis- 
repair and an employee was injured and brought action 
against the master. The court held that this was not a case of 
injury received at the hands of a fellow-servant, but that the 
superintendent here was simply the representative of the mas- 
ter, or, as is sometimes said, his vice-principal. 

It Is not true, however, that merely because servants are 
of different grades, they are no longer fellow-servants. It 
often happens that a foreman and one of the men working 
under him are held by the courts to be fellow-servants. In 
one case men were at work building a bridge; a gang fore- 
man negligently overloaded a hand-car with iron girders and 
sent several men up an inclined plane with this hand-car. As 



Servants and Employees. 51 

a result of the overloading one iron bar fell from the car and 
injured a workman. In the injured man's action against the 
company it was held that, while the foreman and the work- 
man were of different grades, they were, nevertheless, fellow- 
servants, and that for that reason damages could not be recov- 
ered against the master. As another illustration we may take 
the case of a number of men working in a railroad yard; one 
of the tracks in this yard was known as a cripple track, and 
on it were shunted from time to time disabled cars ; a foreman 
at work in the yard sent one of his men to this cripple track 
to bring him some utensil, and while the workman was on the 
cripple track, a car was shunted down upon it and injury 
resulted to the man who had been sent to the dangerous track. 
Again it was held that this was a case of injury done by one 
fellow-servant to another, and that the master, who, in this 
case would be the railroad company, would not be answerable. 
While, as is seen, this rule is very frequently construed in 
favor of the master, the workman is also occasionally given its 
advantage. In one case a servant was injured by the careless- 
ness of a fellow-servant and was met in court by the master 
with the usual excuse that the injury was due to the negli- 
gence of the fellow-servant. Thereupon the servant who had 
been injured, showed that the servant at whose hands he 
received his injury was a drunkard, and that this weakness 
had long been known to the master, whereupon the court held 
that as the master had not performed his own duty in furnish- 
ing competent fellow-servants, he could not .now lay claim to 
the privilege granted by the law in case of injury done by one 
employee to another, and the injured man was allowed to 
recover. 

MASTER'S RESPONSIBILITIES TO THIRD PARTIES FOR 
SERVANT'S ACTS. 

A master is responsible to third parties for his servant's 
acts, done within the scope of the servant's employment. This 
rule may again be explained by a simple illustration : a grocer 
with a store in the center of a city sends his deliveryman to 



52 Servants and Employees. 

the western part of the city to leave a package. "While on the 
way the deliveryman negligently runs into and injures a pedes- 
trian. The pedestrian could successfully sue the grocer, 
because the negligent act of the deliveryman was within the 
scope of the latter's employment. We may go farther than 
this: suppose that the deliveryman while driving on the whole 
in a westerly direction had nevertheless made certain unneces- 
sary detours from his route, and while driving in this round- 
about way, had injured the pedestrian. Still the grocer would 
be liable for the injury, as it is still due to a servant's act 
within the scope of his employment. For the third case let us 
suppose that the servant when told to deliver the package at a 
house in the western part of the city flatly refuses to obey, 
and drives with the master's horse and wagon on a pleasure 
excursion to the eastern confines of the city, and while on his 
way there again injures a pedestrian. ISTow the pedestrian 
would be without a cause of action against the grocer, because 
in this last case the driver was not acting within the scope of 
his employment. It often happens, that masters are held liable 
for wrongful acts of servants, which, though wrongful, are 
nevertheless performed within the scope of the servant's 
employment. 

THE SCOPE OF EMPLOYMENT. 

A master once set his servant to piling lumber on a lot, 
giving him careful instructions not to place any of the lumber 
near the sidewalk. The servant piled the timber on the lot, 
but disregarded the master's other instructions and set a pile 
of it so near the street that a stick fell off and injured a child 
who was upon the walk. Although it was shown on the trial 
that the lumber had been put in that position by the servant 
against the express direction of the master, yet it was held that 
this was done in the furtherance of the master's work and 
within the scope of the servant's employment, and that the 
master was therefore liable to the child. In another dispute 
brought before the courts it appeared that an omnibus com- 
pany had bidden its drivers never to race with the drivers of a 



Servants and Employees. 53 

rival stage company, and that on one occasion a driver, disre- 
garding this direction, had driven his horse at a rapid rate to 
pass the driver of the other concern, and had thereby done 
injury to a man, who sued the omnibus company. Here again 
it was held that the servant was acting within the scope of his 
employment, and that the master must answer for the injury. 
The distinction was well drawn by Judge Grover, one of the 
best known jurists who has ever sat upon the bench of the 
Court of Appeals in !N"ew York state. He wrote: 

"If the owner of a building employs a servant to remove 
"the roof from his house and directs him to throw the materi- 
als upon his lot, where no one would be endangered, and the 
"servant, disregarding this direction, should carelessly throw 
"them on the street, causing an injury to a passenger, the 
"master would be responsible therefor, although done in vio- 
lation of his instructions, because it was done in the business 
"of the master. But should the servant, for some purpose of 
"his own, intentionally throw material upon a passenger, the 
"master would not be responsible for the injury, because it 
"would not be an act done in his business, but a departure 
"therefrom by the servant to effect some purpose of his own." 

As an illustration of an instance in which a master was 
not held liable for a wrongful act by a servant, because it was 
wholly distinct from the task set, we may speak of the case 
where a landlord and a tenant fell into a dispute over some 
small matter which was to be done about the leased premises, 
whereupon the servants took sides, and finally one of the land- 
lord's servants shot and killed a servant of the tenant. In a 
civil action brought by the personal representative of the serv- 
ant who had been killed, against the landlord, it was decreed 
that there should be no recovery, since it could not be held 
that the killing of a fellow being by the landlord's servant was 
within the scope of his employment. 

The English case of Armory against Delamirie, decided 
as long ago as 1722, affords a rather amusing illustration of 
the doctrines of which we have just been speaking, as well as 
several other important legal rules. As it is short, it is 
quoted here: 



54 Sebvants and Employees. 

"The plaintiff, being a chimney sweeper's boy, found a 
"jewel, and carried it to the defendant's shop, (who was a 
"goldsmith), to know what it was, and delivered it into the 
"hands of the apprentice, who, under the pretense of weighing 
"it, took out the stones; and, calling to the master to let him 
"know if it came to three half-pence, the master offered the 
"boy the money, who refused to take it, and insisted to have 
"the thing again; whereupon the apprentice delivered him 
"back the socket without the stones. And now in trover 
"against the master, these points were ruled: 

"1. That the finder of a jewel, though he does not by such 
"finding acquire an absolute ownership, yet has such a prop- 
erty as will enable him to keep it against all but the rightful 
"owner, and consequently may maintain trover. 

"2. That the action will lie against the master, who gives 
"a credit to his apprentice, and is answerable for his neglect. 

"3. As to the value of the jewel, several of the trade were 
"examined to prove what a jewel of the finest water that 
"would fit the socket would be worth; and the chief justice 
"directed the jury that, unless the defendant did produce the 
"jewel, and show it not to be of the finest water, they should 
"presume the strongest against him, and make the value of the 
"best jewels the measure of their damages, which they accord- 
ingly did." 

The word "trover" which is used in this case is simply the 
name of the action which was brought. 

EXCEPTIONS TO THE RULE. 

There are some apparent exceptions to the rule that a 
master is responsible to third parties for his servants' acts only 
so far as they are within the scope of employment. Thus by 
another rule of law, which is treated more fully elsewhere, 
common carriers of goods and of passengers are held to a 
stricter responsibility for the acts of their servants. Common 
carriers of goods include railroads, ferries, stage and steamboat 
lines, and common carriers of passengers include railroads, 
street-car companies and the proprietors of public convey- 
ances. A gentleman was once riding in a street-car when a 
newsboy attempted to steal a ride and was ordered off by the 
driver. The boy got off; the driver stopped his car, tied the 



Servants and Employees. 55 

reins around the brake handle, climbed over the front of the 
dashboard, and, catching the boy, began to beat him. The 
passengers interfered to protect the boy, whereupon the driver 
began to abuse the passengers and finally seized the gentleman 
of whom we spoke and pushed and knocked his head against 
the pas el of the window, at the same time striking him with 
the butt end of a whip. Under such circumstances the court 
ruled the street-car company should answer for the miscon- 
duct of Its driver. It of course was not within the scope of the 
driver's duty to abuse and beat a passenger, but the general 
rule is here varied by the special provisions of the law govern- 
ing common carriers of passengers. A similar instance arose 
in "Wisconsin where a conductor of a railroad, entering a car 
in which a school teacher sat alone, kissed her Hve or six times. 
She recovered against the company at the rate of about two 
hundred dollars a kiss. This action of the conductor was evi- 
dently not within the scope of his employment, but again the 
company was held liable, under its special responsibility as a 
common carrier of passengers. 

MASTER AND CONTRACTOR DISTINGUISHED. 

A servant is continually under the direction of his master, 
while a contractor is responsible to his employer only for the 
final accomplishment of his task. Accordingly an employer 
is ordinarily not responsible for what the contractor does. In 
illustration, we may refer to the case of a man who, desiring 
to have a cornice put upon his house, let the job to a con- 
tractor; through the contractor's negligence something fell 
from the cornice and injured a man in the street below. It 
was held here that the action must be brought against the 
contractor and would not lie against the employer, inasmuch 
as the contractor was responsible only for the completion of 
the work and was not under the direction of the master while 
the work was being done. 

SERVANT'S OWN RESPONSIBILITY. 

It is of course true in all these cases where injury results 
from the negligence of a servant, that an action for damages 



56 Servants and Employees. 

may be brought against the servant himself. In the great 
majority of cases, however, servants are not financially respon- 
sible, and it is commonly deemed better, where it is possible 
so to do, to bring the action directly against the master. 



CHAPTEK V. 

AGENTS. 

Classification of Agents— Formation of the Relationship between 
Principal and Agent — Ratification — Agencies by Estoppel — How 
the Relationship may be ended — Duties of Principal to Agent — 
Duties of Agent to Principal — The Relation of Principals to Third 
Parties — Undisclosed Principals — Notice to Agent — Liability of 
Principal for Frauds of Agent — Execution of Contract by Agent — 
The Factor's Acts. 

An agent is a person employed to bring his principal into 
agreements with other persons, or, as it is sometimes said, to 
create contractual relations. There is an evident distinction, 
then, "between an agent and a servant. The contract made by 
the agent is really not the agent's own contract, but the con- 
tract of the principal. It is apparent that the class of those 
who may be agents is broader than the class of those who may 
be principals. For example, there is no reason why a person 
who is under twenty-one years of age and thus an infant, who 
has nevertheless arrived at years of discretion, may not act as 
an agent and in that capacity create binding contractual rela- 
tions. 

CLASSIFICATION OF AGENTS. 

A special agent is commonly denned as an agent who rep- 
resents the principal in a single transaction or a single set of 
transactions, while a general agent represents the principal 
in all business dealings of a particular kind. Some authori- 
ties say that if an agent's powers are fixed by the terms of his 
appointment, he 's a special agent, while if his powers depend 
upon custom and usage, he is a general agent. A del credere 
agent guarantees his principal against the default of those 
with whom contracts are made. Attorneys at law, clerks, 
brokers, factors or commission merchants, cashiers and many 
others, are, of course, simply agents. A common distinction 

57 



58 Agents. 

drawn between factors or commission merchants and brokers 
is that factors handle the goods sold, while brokers do not 

HOW AGENCIES ARE CREATED. 

The usual method of authorizing a person to act as an 
agent is by an agreement. This agreement is a contract, and, 
to be binding, must contain the elements always to be found 
in a contract, including consideration. Generally speaking, 
parties who are competent to enter into a contract, may make 
an agreement of agency. It is sometimes stated that the 
contract of an infant for the appointment of an agent is void. 
The tendency of the later cases is, however, to confine this 
rule simply to an appointment of an attorney by an infant, 
by formal warrant of attorney. As a usual thing, to avoid a 
contract made by an agent for an insane principal, it must 
be shown that the person with whom the attorney entered 
into the contract had knowledge of the principal's incapacity. 
If the insane person has been duly adjudged insane, it would 
seem that that fact would give knowledge to all the world of 
his mental incapacity. As a general rule the appointment of 
an agent may be made by word of mouth, though, of course, 
it is always safer to have a writing defining the agent's pow- 
ers. If the agent's authority is to last more than a year, the 
power given should be in writing, under the provisions of the 
statute of frauds. Where the agent is to enter into a contract 
which demands a seal, as for example, the execution of a 
deed, the agent's appointment must also be under seal. So 
far as third parties are concerned, it is not especially impor- 
tant whether the agent receive compensation for his services 
or not. The gratuitous promise by an agent to perform an 
act for the principal is unenforceable, as it is not based on 
consideration. 

RATIFICATION. 

In cases where the agent's authority rests upon an agree- 
ment or contract, it is evident that the assent of the principal 
to the agent's doings, is ordinarily given before it is per- 



Agents. 59 

formed. Sometimes, however, the principal does not give his 
assent until after the act is performed, and it is then in the 
nature of a ratification and is intended to clothe the act with 
such qualities as it would acquire from a prior appointment. 
Ratification is defined by a writer on agency, as the adoption 
of an act or contract entered into in behalf of the one 
ratifying, by one who had no previous authority to rep- 
resent the one so ratifying in the doing of the act or the 
making of the contract. Such ratification may be either 
expressed or implied, and ordinarily no particular form of 
acceptance is required. If there be a manifestation of the 
principal's intent to adopt the agent's act, in such a way that 
an ordinarily prudent man would find therein the principal's 
assent, there is a ratification. The ratification might be given 
by word of mouth, might be written, and, if written, sealed or 
unsealed, or the conduct of the principal might result in a rati- 
fication, as for instance, where the principal knowing of the 
act of the agent, accepts benefits flowing from it. As was said 
in a Wisconsin case : 

"Eo rule of law is more firmly established than the rule 
"that if one with full knowledge of the facts, accepts the 
"avails of an unauthorized treaty made in his behalf by 
"another, he thereby ratifies such treaty and is bound by its 
"terms and stipulations as fully as he would be had he nego- 
tiated it himself." 

An unauthorized contract made by the agent under seal 
must be ratified by an instrument under seal. The authorities 
disagree as to whether if A forges the name of B to an instru- 
ment, B may ratify the forgery. 

AGENCIES BY ESTOPPEL. 

There are also certain forms of agency which do not rest 
on assent given either before or after the act. These relation- 
ships are created by the law on the grounds of public policy 
or convenience, and are known as agencies by estoppel. They 
rest upon the idea that when one man induces another to 
believe in the truth of a statement which he has represented 



60 Agents. 

to be true, he will not be permitted to deny that it is true, if 
the other has been misled by the representation ; the month of 
the person who has induced the other to believe, is stopped by 
the law against denial. Any statement or conduct which to a 
reasonable man would seem a representation, may constitute 
such an estoppel, and it may therefore consist in an express or 
an implied representation. 

Agency by estoppel is well illustrated in the following 
extract from a United States case: 

"Where one, without objection, suffers another to do acts 
"which proceed upon the ground of authority from him, or by 
"his conduct adopts and sanctions such acts after they are done, 
"he will be bound, although no previous authority exists, in all 
"respects as if the requisite power had been given in the most 
"formal manner. If he has justified the belief of a third 
"party that the person assuming to be his agent was author- 
ized to do what was done, it is no answer for him to say that 
"no authority had been given, or that it did not reach so far, 
"and that the third party had acted upon a mistaken conclu- 
sion. He is estopped to take refuge in such a defense. If a 
"loss is to be borne, the author of the error must bear it." 

Occasionally the relation of principal and agent is formed 
by necessity. A common example is the agency of a wife in 
the purchase of necessaries. It is pointed out elsewhere that 
although a husband has not only not authorized a wife to 
pledge his credit, but has even forbidden her to do so and 
given notice to tradesmen of the prohibition, he will neverthe- 
less sometimes be compelled to pay for the necessaries she 
purchases. 

HOW THE RELATIONSHIP MAY BE ENDED. 

The termination of the agency will ordinarily rest upon 
agreement. The original agreement may set a time for its 
suppression; the purpose of the agency may cease, or a sub- 
sequent agreement for its ending may be made. 

The death of either principal or agent ends the agency; 
this is not infrequently a harsh provision. For example, look 
at a case in New York state : William Maden, who had been 



Agents. 61 

for many years a resident of Cuba, died in August, 1884, on 
that island. He owned real estate in Brooklyn which was 
managed for him by an agent. One of the tenants of this 
property for several months after August, 1884, paid his rent 
to this agent, not knowing of Mr. Maden's death, but the 
agent does not appear by the case to have accounted for the 
rent received. Thereupon the parties entitled to the rent 
under Mr. Maden's will, brought an action against the tenant 
to compel the latter to pay the rent over again, and it was held 
that the tenant must pay again and that his earlier payment to 
the agent would be no defense. The court, in discussing the 
question, says: 

"The rule is well settled by authority that the power of an 
"agent to collect and receive payment of rents falling due to 
"his principal, when such power is not coupled with an inter- 
est, terminates and ceases upon the death of the principal, 
"and that payment made thereafter to the agent does not bind 
"the estate of the principal, though the payment be made in 
"ignorance of the principal's death. * * * The rule seems 
"to have originated in the presumption that those who deal 
"with an agent knowingly assume the risk that his authority 
"may be terminated by death without notice to them. The 
"case of an agency coupled with an interest is made an excep- 
tion to the rule. * * * It is urged that the exception 
"applies to this case for the reason that the agent was entitled 
"to commissions upon the rents collected, and to be allowed 
"his disbursements for repairs, insurance and taxes. The trial 
"court refused to find that he had such an interest as would 
"prevent the revocation of the power upon the death of the 
"principal. There was no proof to show that the agent, at the 
"time of the death, had any claim on account of repairs, insur- 
ance or taxes, and, therefore, it is needless to inquire how 
"far, if at all, these elements, if shown to exist, would change 
"the case." 

As implied in the foregoing quotation, if the power be 
one coupled with an interest, then the principal's death does 
not revoke it, and it is probably sufficiently indicated in the 
quotation what does not constitute a power coupled with an 
interest; that is to say, the mere fact that the agent is to 



62 Agents. 

receive a commission or the like, does not give him a power 
coupled with an interest, since the interest must not be in the 
proceeds of the agency but in the thing itself. If land were 
conveyed to A with power to appoint to whom the land should 
go upon his death, we should probably have an illustration of 
a power coupled with an interest. 

DUTIES OF PRINCIPAL TO AGENT. 

Generally speaking, the principal must compensate, reim- 
burse and indemnify the agent. Compensation may of course 
rest either upon an expressed agreement or upon an implied 
undertaking to pay what the agent's services are reasonably 
worth. Reimbursement will ordinarily cover all sums which 
the agent has put out or for which he has become liable in the 
course of the agency. The principal must also indemnify the 
agent against the consequence of legal acts performed in the 
execution of the agency. For example, an auctioneer selling 
for his principal goods belonging to a third person, is entitled 
to an indemnity if the true owner secure judgment against 
him for conversion of the articles. 

DUTIES OP AGENT TO PRINCIPAL. 

The agent must obey his principal, exercise ordinary skill 
and judgment, manage the principal's interest with the high- 
est good faith, account for what he receives, and act in person, 
unless he be authorized to employ sub-agents. The agent's 
duty to obey and to exercise care probably needs no explana- 
tion; it is not always understood, however, that an agent is a 
trustee. It is said sometimes that an agent may lose but can- 
not gain; he will never be allowed to take to himself any 
advantage of a bargain made for his principal, other than 
would naturally fall from his commission. An agent sent by a 
principal to buy a piece of property would not be allowed to 
bid in the property in his own name, nor will the law allow 
an agent to act for two principals where discretion is to be 
exercised for both parties, for no man can serve two masters. 
The account to be rendered by the agent to the principal must 



Agents. 63 

include not only all money and property coming to the agent 
from the relationship, but also profits resulting from his tran- 
sactions as an agent, and it would seem that this is true even 
though the profitable transactions were without the scope of 
the agent's authority. If the business is of such a character 
as to require accounts, they should be kept by the agent to 
cover both receipts and disbursements, and all vouchers must 
be preserved for the principal. The principal may follow trust 
funds to which he is entitled, and which have come into the 
hands of his agent, so long as they can be identified and so 
long as they do not reach the hands of a bona fide purchaser 
for value. 

THE RELATION OP PRINCIPALS TO THIRD PARTIES. 

Ordinarily an agent acting for a principal will remain 
within his authority, and then no especial question will arise 
as to the rights of third parties. Where the agent goes outside 
of his actual authority, but is, nevertheless, within his appar- 
ent authority, it is plain that the principal, as an ordinary 
rule, will be held. Where the act done by the agent is appar- 
ently outside of the agent's authority, it will, as a general rule, 
be true that the third party will not be allowed to hold the 
principal for the act. These rules may be illustrated by sev- 
eral cases. In the first, a freight agent of the Erie Railroad, 
who had authority to receive and forward freight and to give 
bills of lading upon actual receipt of property for transporta- 
tion, issued to W a bill of lading purporting to be for 
sixty-five barrels of beans, describing them as received to be 
forwarded to a certain consignee, adding the usual statement 
"contents unknown." As a matter of fact, no beans what- 
ever had been received. W, on the strength of this bill 
of lading, secured money at a bank. It is clear enough that 
the agent of the Erie road had no authority to issue this bill 
of lading, when, as a matter of fact, no beans had been 
received; nevertheless, when later an action was brought by 
the bank against the Erie Railroad for reimbursement of the 
money advanced on the spurious bill of lading, a recovery was 



64 Agents. 

allowed on the ground that the issuance of the bill of lading, 
though actually not within the agent's authority, nevertheless 
apparently came within his rights. The language of the court 
has been regarded as an exceptionally careful and trustworthy 
statement of the general truth. It follows: 

"It is a settled doctrine of the law of agency in this state 
"that where the principal has clothed his agent with power to 
"do an act upon the existence of some extrinsic fact neces- 
sarily and peculiarly within the knowledge of the agent, and 
"of the existence of which the act of executing the power is 
"itself a representation, a third person dealing with such 
"agent in entire good faith, pursuant to the apparent power, 
"may rely upon the representation, and the principal is 
"estopped from denying its truth to his prejudice." 

In another case the president of a warehouse company 
issued to himself a warehouse receipt, indicating that a cer- 
tain quantity of cotton had been received at the warehouse 
and was there held subject to his order; and upon the credit of 
this receipt the president obtained money at a bank. Again 
the goods had not been received, and there was no cotton in 
the warehouse answering the description. Here when the 
bank brought its action against the warehouse company, it was 
held that the fact that the president had issued the receipt 
to himself was enough to put the bank on its guard, and it 
should not have advanced the money without further inquiry. 
"No recovery was allowed. In another case arising out of simi- 
lar transactions, it appeared that the same president had issued 
to himself another receipt upon which he had again obtained 
money, and that again no cotton had actually been placed in 
the warehouse. Here, however, it was further shown that the 
directors of the company had known of the president's issuing 
warehouse receipts to himself from time to time, and had made 
no objection thereto, and, under these circumstances, the 
directors were held, in a measure, to have authorized or ratified 
the president's act, and a recovery was directed against the 
warehouse company. It will be seen, therefore, that the deci- 
sion of these cases rests largely upon the particular facts 



Agents. 65 

involved. Where the agent has apparently and undoubtedly 
acted outside of his authority, the principal may not be held, 
and the party injured must look simply to the agent. 

UNDISCLOSED PRINCIPALS. 

It frequently happens that an agent makes in his own 
name a contract which is really the contract of his principal. 
As a general rule the person dealing with the agent for such 
an undisclosed principal may elect either one of two courses; 
he may hold the agent himself responsible, or he may show by 
outside evidence who the principal really was, and look upon 
the undisclosed principal as the person bound by the contract. 

NOTICE TO AGENT. 

Notice to the agent is notice to the principal, who there- 
upon is chargeable with any knowledge communicated to the 
agent. The principal usually is not bound by notice acquired 
by an agent who is as a matter of fact acting adversely to the 
principal. 

LIABILITY OP PRINCIPAL FOR FRAUD OF AGENT. 

Where fraud is done by an agent in the course of his 
employment, and for the benefit of the principal, it is gener- 
ally, though not universally, held that the principal is liable. 
Thus, for example, it has been held that w T here a sheep deal- 
er's agent, authorized to sell a flock of sheep, fraudulently 
sold a portion of the flock with the knowledge that they were 
diseased, the sheep dealer would be liable for the fraud in an 
action in tort, brought by the purchaser. Much doubt arises 
in the case where the fraud is committed in the apparent 
course of the employment, but actually for the benefit of the 
agent. 

EXECUTION OF CONTRACT BY AGENT. 

As has elsewhere been pointed out, an agent in signing a 
contract should never sign by his own name with the simple 
addition of the word "agent" or the words "agent for so and 
so;" the result of such a signature may be to hold the agent 



66 Agents. 

personally liable. The principal's name should first be signed 
by the agent, and this should be followed by the word "by" 
and the agent's name. Thus, if John Jones is executing a 
contract as agent for John Smith, the form of execution 
should be "John Smith, by John Jones, agent." 

THE FACTORS' ACTS. 

In many states have been enacted laws relating to the rela- 
tionship of principals and factors. These acts represent con- 
siderable divergence in the several states; but, in general, they 
regulate questions as to liens, bills of lading, custom-house 
permits, warehouse receipts and other documentary evidence 
of title. The factor's right to sell to the extent of the advances 
made by him, is also regulated by the factors' acts. It is per- 
haps a general principle that a factor, on notification to his 
principal, may sell to the extent of his advances. Any person 
dealing largely with commission merchants should familiarize 
himself with the provisions of the law relating to such deal- 
ings in the state in which he lives. 



CHAPTER VI. 
WRONGS. 

What are Wrongs — Who is Responsible for Wrongs — Assault and 
Battery — False Imprisonment — Malicious Prosecution — Slander 
and Libel— The Rule in Libel— Publication— The Truth as a De- 
fense — Privileged Cases in Slander and Libel— Reports of Public 
Occurrences — Libel also a Crime. 

In the next three chapters we shall consider such causes of 
action as arise out of the breach of legal duty owing from one 
man to another in the absence of any contract or agreement 
between them. Perhaps, in morals, a man may be just as 
culpable who breaks an agreement which he is under legal 
obligation to fulfill as one who slanders me, libels me, falsely 
imprisons me or commits trespass or nuisance upon my prop- 
erty. But the law makes a distinct division between cases 
which arise out of the breach of a contract and those which 
grow out of circumstances which the law has declared to be 
actionable wrongs. These wrongs differ from crimes in that 
they concern the private grievance and attempt to redress it. 
A crime is a wrong against the state, which it recognizes and 
punishes. It will thus be seen that a misdeed may be both a 
private grievance and a public crime. If a man strike me I 
may have him arrested for the crime of assault, for which he 
must be punished by the proper authorities, and I may, in 
addition, sue him at law for money damages to compensate 
me as far as money will for the injuries I have suffered as a 
result of the blow. Not every wrong is actionable and such 
wrongs as do give cause for legal redress are classified by law- 
yers under well known names, to which are applied well 
defined legal rules. Let us first, then, examine what are and 
what are not actionable wrongs, and under what circumstances 
legal responsibility may arise. 



68 Wrongs. 

what are "wrongs. 

A wrong, or as it is called in law, a tort, is a violation of 
a legal right, which is independent of contract. While the 
definition given is short each word in it is important. As is 
usually the case, its meaning can be best illustrated by exam- 
ples. In the first place, one frequently suffers damage at the 
hands of his neighbor, when nevertheless there is no violation 
of right of which the law will take notice. If two men own 
adjoining lots, either one may build a high spite fence on his 
own land for the express and malicious purpose of shutting 
out light and air from his neighbor's building; and yet here 
there is no wrong with which the law will concern itself, 
because no legal right has been violated. Of course if the 
man who was building the spite fence should place his struc- 
ture in such a way that it was in part on the neighbor's lot, 
there would evidently be a trespass and so a wrong which 
could be remedied at law. The summer resorts of Ocean 
Grove and Asbur , Park have, or had, adjoining tracts of land 
in ISTew Jersey. Ocean Grove obtained a good supply of 
water from wells which tapped subterranean currents. 
Asbury Park sunk a well near the Ocean Grove well and 
greatly lessened Ocean Grove's supply of water; the damage 
suffered by Ocean Grove was great, but it was held that there 
could be no action because in drawing off these subterranean 
currents Asbury Park had not violated any legal right belong- 
ing to Ocean Grove. If it had appeared that there was a well- 
defined subterranean stream which fed Ocean Grove's well, 
and that this stream had been diverted by the Asbury Park 
well, then the ruling of the court might have been different. 

On the other hand, in many cases where there is really no 
appreciable damage at all, the court will find that an injury 
has been done which will form the basis of an action at law. 
If one man with clenched fist run at and, when within striking 
distance of another, threaten to beat him, there is an assault, 
although no blow is actually given, and for this the law will 
give damages. Again, if a certain township were overwhelm- 



Weongs. 69 

ingly Republican, nevertheless if anybody forcibly restrained 
a single Republican voter in that township from casting his 
vote, that voter would have been injured, and could sue the 
person who had interfered with his right of franchise, though 
the result of the election had been in no way affected. Indeed 
the law will grant a right of action in some cases where a 
decided benefit seems to have been wrought by the deed com- 
plained of; if a tramp who had not bathed for years were 
seized on a summer day and thrown into a stream, it might do 
him a great deal of good; still he could sue the people who 
had taken this liberty with his person and recover damages. 
These are of course exceptional instances, and in the usual 
action for tort it appears that there are both the injury for 
which the law looks and also damage, as in the familiar case of 
an assault and battery, where there is not merely the threat 
with the clenched fist, but also the resulting blow. The wordi 
"independent of contract" in the definition are also important, 
because in so far as the injury complained of is a breach of 
a contract, it is not to be remedied by the action for tort. 
Thus if one offered to sell a thousand barrels of apples at a 
certain time, the failure to carry out this agreement might 
result in great damage and loss, yet the proper form of action 
here would be on the breach of the contract, and the law 
would not find in these circumstances a tort. 

WHO IS RESPONSIBLE FOR WRONGS? 

As a broad answer to this question, we may say that any 
person who commits an actionable wrong is responsible; this 
includes children and insane people, neither of whom are 
responsible for breaches of contract. Thus, if a child or an 
insane man were to set fire to a house, while possibly neither 
the one nor the other would be liable in a criminal action, yet 
the owner of the burned building would have an action against 
the offender in tort. Another rule which may be considered 
here is that the law places the responsibility on the person who 
actually causes the injury, though it may not have been his 
hands which actually did the harm. A striking illustration of 



70 Wrongs. 

this principle is found in a market day occurrence in England 
many years ago; a number of market-men were standing on 
their booths, when somebody lighted a firecracker and threw it 
onto one of these stands; the occupant of the stand, desiring to 
avoid injury to himself, picked up the cracker and threw it 
onto another stand; it was passed on in this way from hand to 
hand until it finally exploded and injured the eye of one of 
the market-men. It was held that the injured man might 
have an action against the person who had lighted the cracker 
and started it on its journey, the court holding that the action 
of the men in between had been not creative, but merely 
reflexive, much as a man instinctively withdraws his hand 
from the touch of fire. The ruling would of course have been 
different if the cracker had gone out without exploding, and 
then been relighted and started again on its journey, by one of 
the market-men. Then the man who had set the cracker in 
motion for the second time would have been liable. In an 
American case a boy annoyed a man who was working in the 
street; the latter, pickaxe in hand, gave chase to the boy, who 
ran through a grocery store, knocking the spigot out of a bar- 
rel in his headlong flight. The contents of the barrel were 
spilled, and the grocer was allowed to recover their value from 
the man who was chasing the boy. Where two or more men 
join in committing a wrong, an action to recover the full dam- 
age suffered may usually be brought against the one of the 
wrongdoers who has the most money, and although a judg- 
ment for the full sum be recovered against him, he will not 
be allowed to make the others contribute toward the payment 
of the recovery. 

ASSAULT AND BATTERY. 

Though in common speech the word "assault" and the 
phrase "assault and battery" are used in about the same sense, 
in law they are different ; for a battery is a completed assault 
In the example already given in this chapter of the man rush- 
ing at another with clenched fist and when within striking dis- 
tance exclaiming, "I will beat you," there is up to this point 



Wbongs. 71 

an assault, and when the blow falls there is a battery, and all 
taken together make an assault and battery. An assault is 
sometimes said to be an offer or attempt to inflict violence, 
together with a real or apparent present ability, and a real or 
indicated intent to carry out the offer or attempt. Under this 
definition it will be seen that pointing an unloaded pistol at 
another person when within range of the weapon would be a 
civil assault, because, while there is evidently no real ability to 
injure with an unloaded pistol, yet there is an apparent abil- 
ity, and while there is no real intent to do harm, yet an 
intent is indicated to the man threatened. While this action 
would constitute a tort, it probably could not be punished as a 
crime, because to make a crime there must be a real intent, 
which is lacking in this case. Where, on the other hand, 
Abraham Crow, a resident of North Carolina, raised his whip 
within striking distance of William Grayson, and said, "Were 
you not an old man, I would knock you down/' the court held 
that Crow had not in law assaulted Grayson, because the 
accompanying words went to show that he had neither a real 
nor an indicated intent to strike. 

FALSE IMPRISONMENT. 

The famous law writer, Blackstone, said: "Every con- 
finement of the person is an imprisonment, whether it be in a 
common prison, or in a private house, or in the stocks, or even 
by forcibly detaining one in the public streets." And this 
illustrates well the rule that while it is, of course, a false 
imprisonment to imprison a man wrongfully within the four 
walls of a jail, yet it is as much a false imprisonment to 
restrain a man of his liberty entirely in any of the other meth- 
ods indicated. If Mr. Jones meet Mr. Smith on the street 
and without authority say to him, "You are my prisoner; I 
have a warrant for your arrest; come with me;" and if Smith 
believe this and therefore walk along with Jones, this is a 
false imprisonment, though Jones has not touched Smith. 
Likewise, the shutting of a prisoner in a room, although the 
captive be treated with unusual courtesy, and kindness, Is 



72 Wrongs. 

false imprisonment. It used to be the rule that passengers on 
the New York elevated railroad gave up their tickets on leav- 
ing the platforms. One day a man bought a ticket but lost it 
before he reached the platform guard. The guard demanded 
the ticket; the man asked that he be allowed to go, and the 
guard refused to allow him to pass. An altercation arose 
between the two, and the guard finally had the passenger 
arrested. Damages were recovered against the elevated 
railroad company for false imprisonment. The impris- 
onment consisted not only of the arrest, but also of the refusal 
of the guard to permit the passenger to pass down and out. 
Now the elevated railroad companies take the tickets before 
the passengers enter the cars, and it is, of course, no false 
imprisonment to refuse to allow a man who has not bought a 
ticket to enter the cars. 

MALICIOUS PROSECUTION. 

This is an action brought by a man who has been wrong- 
fully harassed by litigation, against the instigator of the 
earlier proceeding. The plaintiff in the action for malicious 
prosecution must show that the proceeding complained of was 
started by the present defendant, that it was done malicious- 
ly, and without probable cause, and that the earlier proceed- 
ing has been determined in favor of the present plaintiff, or 
that it has reached a point where to secure its continuance a 
fresh start would be necessary; as for example, where the 
prosecuting attorney has entered a nolle pros., indicating that 
he does not care to go farther with the prosecution. By the 
words "probable cause" here are meant not such cause as 
might seem probable to the man who instigated the prosecu- 
tion, but such cause as would seem sufficient to warrant a cau- 
tious man in the belief that the accused person was guilty. 
The word "maliciously'' includes actual spite, and also in- 
cludes the case where one instigates a proceeding simply to 
divert suspicion from himself; thus a man who had commit- 
ted a robbery might endeavor to have one of his best friends 



Wrongs. 73 

prosecuted for that robbery simply to avoid punishment him- 
self. This course of action the law will look upon as malicious. 

SLANDER AND LIBEL. 

Slander is defamatory matter addressed to the ear, and 
libel is defamatory matter addressed to the eye; thus libel 
includes not only defamatory letters and articles, but also 
hanging a man in effigy, or similar appeals to the sense of 
sight. It may be said as a general rule in slander, that to 
recover damages one must show that some special injury has 
resulted from the words complained of, and this injury must 
always be a loss to the pocket book; one might worry a man 
into illness by spreading a slanderous statement about him, 
and yet this would not constitute a damage for which the law 
would give recompense. Some slanderous charges, however, 
the law looks upon as so grievous that it will allow damages 
though no money loss be shown; among them are a charge 
that a man has committed an indictable offense involving 
moral turpitude; a charge that one is suffering from an infec- 
tious disease tending to exclude him from society, though the 
tendency of the law appears to be to confine this rule to lep- 
rosy and a few other maladies ; a charge which tends to injure 
one specially in his trade or occupation. These first two 
charges explain themselves, and of the third it may be pointed 
out by way of illustration that a charge that a doctor was dis- 
honest, or that a day laborer could not read would not fall 
within the group of slanderous accusations for which the law 
will give damage without showing a money loss, because 
neither of these charges tends to a special injury in the chosen 
trade or occupation; to say, however, of a school teacher that 
he could not read, or of a lawyer that he was not fit to try a 
case in justice's court, would be an injury which the law 
would redress although no money loss were shown. 

THE RULE IN LIBEL. 

Many statements which are not slanderous unless it appear 
that money damage has resulted therefrom, are libels when 



74 Weongs. 

placed in writing. To say of a man that lie is a rascal or~a^ 
liar is ordinarily not slanderous, unless special money loss bo 
shown, but the same words in writing constitute a libel. Some 
authorities say that anything tending to subject to ridicule or 
disgrace, or to injure in business, is libelous. Therefore in writ- 
ing letters about others one must be extremely cautious as to 
the terms used. 

PUBLICATION. 

Before the law will give damages it must appear that the 
slander or libel was communicated to a third party. To 
merely say to a school teacher to his face, that he could not 
read, would not- be slanderous unless it were overheard by a 
third party in some way. A letter to become the basis for an 
action in libel must come to the notice of a third party. How- 
ever, the law would perhaps consider there had been sufficient 
publication, if it were merely dictated to a stenographer or 
copied in a letter-press book by the office boy. 

THE TRUTH AS A DEFENSE. 

The truth is always a complete defense to an action for 
slander or a civil action for libel. It is necessary, however, 
to prove that the charge in its entirety was true; otherwise 
damages may be given. 

PRIVILEGED CASES IN SLANDER AND LIBEL. 

Under certain circumstances words which otherwise would 
be slanderous or libelous are not actionable. A judge, a jury- 
man, a witness or an attorney may say on the trial of a case 
anything at all, so long as it is pertinent to the matter under 
discussion. It makes no difference how untrue, how malicious 
and how injurious the statement may be, it nevertheless is not 
actionable under these circumstances. A member of the legis- 
lature has the same privilege in discussing any question which, 
is before the house for determination. These instances are 
known as cases of absolute privilege. 

There is also a privilege known as the qualified or partial 
privilege, and in this latter form of privilege the statement 



Wbongs. 75 

is actionable as slanderous or libelous only when it is shown 
to have been made with actual malice. When called upon to 
give a character to a servant, one who has personally employed 
that servant may give to the prospective employer what he 
believes to be a true description of the servant, and if it after- 
ward prove that the character thus given was without foun- 
dation or truth, and extremely injurious to the servant, the 
statement nevertheless will not found an action, unless it be 
shown that it was made in malice against the servant. The 
same privilege extends to advice given by a father to an 
unmarried daughter concerning a young man who is fre- 
quently in the daughter's company. In one case where 
one young woman undertook to give information to 
another young woman of her acquaintance with refer- 
ence to a young man who had been keeping company 
with the one to whom the statement was made, and where 
the injurious information contained in the letter conveying 
this information could not be proven to be true, the court 
indicated that an action for libel might lie, although the girls, 
some time before the writing of the letter, had been intimate 
friends, and on one occasion information of this kind had been 
requested, on the ground that the young woman who asked 
it had no brother, and so did not hear much about the young 
men in the village in which they both lived. In this latter 
ease the information conveyed was probably not given 
through any malice felt by the young woman toward the 
young man in question, but it was perhaps actionable, because 
here there was no adequate ground for claiming a privilege. 
Such information given in an honest belief as to its truth by a 
father to his daughter, or probably by an older brother to his 
sister, would have been excused by the law, even though it 
was proven to be untrue. 

It used to be the custom of the commercial agencies 
to send broadcast through the country their reports in a 
cipher, which nevertheless could be read by all their 
subscribers. In this way information of failures was 



76 Wrongs. 

spread rapidly, and it occasionally happened that a commer- 
cial agency gave the idea that a man was financially embar- 
rassed, when as a matter of fact his credit was good, and in 
these instances it was held that the agency would be liable, 
because, while its reports were in cipher, yet they could be 
read by any one who chanced to have the key. This difficulty 
has now been obviated by the introduction of a new method, 
which is to give the desired information only to those persons 
who make inquiry for it, and the courts hold that as between 
the commercial agency and those persons who are especially 
interested in a man's financial standing, there is a sufficiently 
confidential relationship to give to the commercial agency a 
qualified privilege in making its reports, and that state- 
ments thus made are not actionable, even though untrue, 
unless made maliciously. 

REPORTS OP PUBLIC OCCURRENCES. 

It is generally true that a fair and accurate report of judi- 
cial proceedings or occurrences of any kind in which the pub- 
lic is legitimately interested, is not actionable when made by 
a newspaper, magazine or other source of general information. 
Considerable freedom is always given in discussing the behav- 
ior of public men; as, for example, of candidates for office; 
much more, indeed, than will be allowed with reference to a 
private citizen who has no such aspirations. A fair criticism of 
a book or play is seldom actionable, even though it may be 
severe. 

LIBEL ALSO A CRIME. 

What has been said here of slander and libel relates to 
them only as torts. Libel is also a crime. 



CHAPTEE VII. 
NEGLIGENCE, TRESPASS AND FRAUD. 

Negligence — Contributory Negligence — Imputation of Negligence — 
Injuries to Property — Saving Human Life — Injuries Causing 
Death — Trespass — Trespass Against Personal Property — Injuries 
by Animals — Fraud and Deceit — Nature of the Representation. 

The wrongs discussed in the last chapter were such as gen- 
erally arise out of the malicious feelings of one person toward 
another, or, at least, intentional wrong doing. A judgment 
for damages growing out of such an action would, in many 
states, give the plaintiff the right to have the defendant 
arrested and confined in jail, in default of payment, even 
where imprisonment for debts of an ordinary character is 
abolished. In fact, this is generally true of any judgment 
secured as the result of an action for a legal wrong. In this 
chapter we shall first speak of actions which arise from the 
want of proper reason, prudence and care on the part of some 
one; though it may often happen that the negligence which 
occasions the lawsuit is that of an employee, for whose acts 
the defendant is responsible ; though, personally, in no way at 
fault. Something has already been said about the law of 
negligence in the discussion of the relations of master and 
servant ; and it will be found inseparably connected with many 
topics which will be considered hereafter. Trespasses may or 
may not be malicious; and fraud is a species of wrong which 
often is closely allied to the law of contracts. It may even 
happen that there may be a choice to be made between an 
action for the wrong involved in the fraud and an action for a 
breach of the contract. Here, as will often appear in the 
course of our treatise, one branch of the law blends almost 
imperceptibly into another. The legal effects of the distinc- 

77 



78 Negligence, Trespass and Fraud. 

tion between a fraud and a breach of contract, though impor- 
tant, concern the lawyer rather than the layman. 

NEGLIGENCE. 

Although scores of volumes have been written on the sub- 
ject of negligence, it is difficult to give a satisfactory defini- 
tion of the term. The word "negligence" as used in law does 
not have exactly the same meaning which is given to it in the 
ordinary speech of men. It indicates in part the failure to 
exercise proper care toward some person to whom such care is 
due. It will readily be seen that varying degrees of care must 
be used toward different persons. You need not show as 
much care toward a trespasser as is to be shown toward a 
person who is rightfully on your premises; nevertheless, this 
does not indicate that anything one chooses to do to a tres- 
passer will be sustained by the law. Again, the mere tres- 
passer is entitled to more consideration than some one who 
comes on the premises to make a petty theft; yet in this case 
also one could not treat the offender with utter recklessness. 
Probably when the person in question was a burglar forcing 
an entrance to a house, all question of negligence would be 
gone, as the law would scarcely conceive of any method of 
repelling him, which would be regarded as failing to recog- 
nize the intruder's rights. The same variance in the degree 
of care required is shown in the treatment which a railroad 
company must accord to those it carries on its trains. To pas- 
sengers who have paid their fare the railroad company owes 
a very high degree of care. In its treatment of those who 
ride on passes the company may be less punctilious. Among 
those who travel free on railroads are occasionally found men 
who are sent to take charge of live stock, who when watching 
over valuable animals, sleep in the car with their charges. To 
these men it is clear the railroad company would not owe any 
such degree of care as would be accorded its regular passen- 
gers. Some people go from town to town by stealing rides 
on freight trains; and even to these vagrants, including the 



Negligence, Trespass and Fbaud. 79 

very tramp who lies on the bumpers, the company owes some 
degree of care, however slight it may be. Thns, for example, 
it would undoubtedly be negligence on the part of the rail- 
road company to throw one of these intruders from the cars 
while the train was in full motion. It might happen in a 
quarry that by the falling of an imperfectly constructed der- 
rick, injury was done both to an employee of the quarry com- 
pany and to a man who had simply come on the grounds to 
look for work; it might then be ruled by the courts that as to 
the employee the company had been negligent, and that to him 
it must answer in damages; but that as to the man who was 
merely looking for work the company had not violated any 
duty, and so would not be answerable in damages to him. The 
only available test, after all, in cases of this kind, is based on 
common sense, the ordinary experience of mankind enabling 
them to determine whether or not there is negligence under 
a given set of circumstances. 

CONTRIBUTORY NEGLIGENCE. 

A peculiar rule in the law of negligence is that the 
plaintiff, to establish his case, must show not merely that the 
defendant was negligent, but also that the plaintiff himself did 
not contribute in any way to the injury by his own careless- 
ness. This rule is not universally used, but is found in a num- 
ber of states, though even in the states where the plaintiff is 
not obliged to show his freedom from negligence as a part of 
his own case, such contributory negligence on his part, if shown 
by his adversary, will still defeat his recovery. It will fre- 
quently happen that a man is injured by a railroad company, 
under circumstances which show the negligence of the com- 
pany so clearly as to admit no doubt; and yet, because the 
injured man has not himself shown due care, he will not be 
allowed to recover. This rule presents a special difficulty in 
cases where the negligent action complained of has resulted in 
death. Then of course it is necessary for the executor or admin- 
istrator who brings the action to show both the negligence of 
the defendant and also the freedom from negligence of the 



80 Negligence, Trespass and Fraud. 

man who has died. Occasionally it will happen that there was 
somebody with the deceased at the time of the accident, who 
can testify that the deceased then used proper care. In many 
instances, however, where accidents result fatally, the man 
killed was alone at the time, or those in the company with him 
met death at the same time ; then, it is clear, it is a matter of 
the utmost difficulty to establish that there was no negligence 
on the part of the one killed. 

IMPUTATION OF NEGLIGENCE. 

This is the term used by the law when it lays to the charge 
of an injured person the negligent act of some other person. 
This question often arises in court when actions are brought in 
behalf of children who have been injured. On arriving at a 
certain age a child is, of course, capable to look out for him- 
self; most children may probably do so under ordinary circum- 
stances by the time they are ten years old; some children are 
so much more capable that they arrive at this period by the 
time they are six or seven, while others might grow to be 
twelve years old in entire dependence on the care and protec- 
tion of those who usually surround them. If injury is done to 
a child who is not old enough to look out properly for him- 
self, the courts sometimes find that the parent or other person 
responsible for the child has been negligent in allowing the 
child to go into danger, and will, under these circumstances, 
impute or charge to the child the negligence of the older per- 
son ; thus defeating the child's right to a recovery of damages. 
The negligence of a driver of a vehicle is sometimes imputed 
to a person in the vehicle. Where one man merely invited 
another to go with him for a drive, and then the one invited 
was injured by the negligence of a railroad company, to which 
the carelessness of his friend had, indeed, exposed him, the 
railroad company would not be allowed to claim that the driv- 
er's negligence should be imputed to his friend; though, of 
course, the mere fact that he himself was not driving would 
not free the friend from all liability for watchfulness. In 
case, however, a man were seated in a buggy with his coach- 



Negligence, Trespass and Fraud. 81 

man, and the coachman's negligence contributed to a railroad 
accident in which the master was injured, it is likely that the 
law would impute the coachman's negligence to the master, 
and so defeat recovery. There seems to be doubt in the case 
where two men own a horse together or where they have 
together hired it for a day, and are both in the wagon at the 
time of the accident. Then perhaps the law would not 
inquire as to which one held the reins at the time of the 
accident. 

INJURIES TO PROPERTY. 

It must not be supposed that because the examples thus far 
relate to injuries to persons, actions based on negligence may 
never be brought for injuries to property. The rules are 
about the same in the one case as the other. 

SAVING HUMAN LIFE. 

Some years ago a train of cars was passing in a negligent 
manner through East Kew York; no signal was given, either 
by the whistle or the bell, and the engine was backing, so that 
the cow-catcher was between the engine and the cars instead 
of pointing 1 out in the direction in which the engine was going. 
Henry Eckert was standing in conversation with another man 
about fifty feet from the railroad track, and at the same time 
a child three or four years of age was sitting or standing on 
the track, in evident danger from the train. Eckert, realizing 
the situation, ran to the child and seizing it, threw it clear of 
the track on the side opposite to that from which he came; 
but continuing across the track himself, was struck by the 
step or some part of the locomotive or tender, thrown down 
and received in juries , from which he died. The court laid 
down as the principles in the case the following: 

"The law has so high a regard for human life that it will 
"not impute negligence to an effort to preserve it, unless made 
"under such circumstances as to constitute rashness in the 
"judgment of prudent persons. For a person engaged in his 
"ordinary affairs, or in the mere protection of property, know- 
singly and voluntarily to place himself in a position where he 



82 Negligence, Trespass and Fbaud. 

a is liable to receive a serious injury, is negligence, which will 
"preclude a recovery for an injury so received ; but when the 
"exposure is for the purpose of saving life, it is not wrongful, 
"and therefore not negligent, unless such as to be regarded 
"either rash or reckless." 

INJURIES CAUSING DEATH. 

It used to be the rule that the law would not give a civil 
action for an injury causing death, the courts ruling that the 
civil wrong would merge in the crime of homicide, and also 
that, for sentimental reasons, no money value could be placed 
on a man's life. Now there are in many states statutes which 
give a right of recovery for injuries which result in death. 
The damages in these actions are based on the loss suffered by 
the next of kin in the death, and do not take into account the 
suffering of the man who has died. The damages recovered 
must always be divided among the next of kin, and cannot be 
distributed among creditors. The action is brought by the 
executor or administrator, and the verdict recovered is fre- 
quently large. The amount is sometimes limited by statute, 
and sometimes juries may give as much as they desire, pro- 
vided their verdicts are based on reason. If a young profes- 
sional man, who was earning ten thousand dollars a year, were 
killed by the negligence of a railroad company, it is easy to 
see that his wife and children might reasonably expect to 
obtain very large damages for this event, depriving them, as it 
did, of an income which was not only large, but might reason- 
ably be expected to continue for many years. 

TRESPASS. 

The word "trespass" includes both trespass to land and 
trespass to person or property. Trespass to land consists in 
intrusion upon the land of another without any permission, 
expressed or implied. The word "intrusion" as here used would 
include walking upon land, driving animals upon it, stringing 
wires over the land, or allowing boughs of trees to cross the 
boundary line and stretch out over a neighbor's lot. For a 
harmless interference of this kind on another's land the dam- 



Negligence, Trespass and Fraud. 83 

ages recovered would perhaps be six cents or some other nom- 
inal sum. If, however, the offense were repeated, then the 
damages in a second action might be heavy. A case from 
Maine will show how slight an interference will constitute a 
trespass: 

"The defendant, when plowing his land, brought his horse 
"and plow on the plaintiff's land, treading down her grass and 
"knocking off bark from her trees. This is the trespass com- 
plained of. The defendant had no right of entry upon the 
"plaintiff's land. His entry was a trespass. Permission was 
"not asked, nor license given. The plaintiff in no way con- 
sented and the defendant never asked consent. The parties 
"rely on their strict legal rights, neither asking of nor giving 
"any favor to the other." 

The judgment in this case was for one dollar. In another 
rather remarkable case, a farmer who had been forbidden to 
cross his neighbor's lands, sent his servant with a team across 
them. When the servant came back to the bars where he had 
entered, he found them nailed up; whereupon he left the team 
on the neighbor's land and informed his master, who came 
and began to tear down the fence, in order to take away his 
team, although the neighbor forbade this action. A fight 
ensued and the owner of the team was injured. In an action 
for assault and battery, which the owner of the team brought 
against his neighbor, the court stated that he had no right to 
pull down the fence and get his team under these circum- 
stances. One may always enter the land of another for the 
purpose of saving property of a third person ; as for example, 
to prevent the destruction of a wrecked boat. 

TRESPASS AGAINST PERSONAL PROPERTY. 

Trespass to personal property consists in a wrongful inter- 
ference with another's right of possession in that property. It 
is not always necessary, therefore, that the action should be 
brought by the owner of property, as it may be brought by 
one who has received the property as a loan or by a contract 
for its use. A mistake will not excuse a trespasser, nor is the 
intent ordinarily material. In another Maine case it appeared 



84 Negligence, Trespass and Fraud. 

that the plaintiff sold the defendant an ox and told him to go 
to his field and take it, and that the defendant went and took 
out of the plaintiff's field an ox which he supposed to "be the 
one purchased; as a matter of fact, however, he seems to have 
taken another in its stead. The court held that under such 
circumstances the man who had taken off the wrong ox would 
be liable in trespass. In Wisconsin it appeared that a sheep 
drover while taking his animals to market, fell in with sheep 
belonging to another man, which were running at large in the 
highway. Four of these latter sheep mingled with the drover's 
sheep, and he drove the whole flock off to market, where the 
four strange sheep were slaughtered with the others. The 
owner of the /sheep had a judgment in trespass against the 
drover, although it had not appeared that the drover had inten- 
tionally taken away the strange sheep. Conversion, as distin- 
guished from trespass, is an injury to the right of ownership 
in a thing, while trespass is an injury to the right of possession. 

INJURIES BY ANIMALS. 

To recover against the owner of domestic animals for inju- 
ries done by them, it must appear that the animals were tres- 
passing at the time the injury was done, or that the master 
had knowledge of the propensity on the part of the animals 
complained of to do mischief. This knowledge on the part of 
the owner is known as "scienter." 

FRAUD AND DEICEIIT. 

Fraud is classed by the law as a wrong or tort, and actions 
may be brought for its redress. To make out a case of fraud 
it is often requisite to prove a good many facts against your 
adversary. You must show that he made a representation of 
some kind which was untrue ; that it was made with intent to 
deceive, and with the intent or with the reasonable expectation 
that it would be acted upon; that as a matter of fact it was 
acted upon; that it was material and that injury resulted there- 
from. Actions for fraud arise more frequently, perhaps, out 
of the sale of property than from any other single cause. It is 



Negligence, Trespass and Fraud. 85 

the general rule in sales that the buyer must look out for him- 
self; and therefore under the rule that a representation must 
be made, there would be no offense if the seller simply kept 
silence, unless he were under a duty to speak, as for instance, 
in a case where he was selling for food an animal which he 
knew to be infected by a disease which would not appear from 
inspection; here he ought to speak, for the very reason that 
the buyer's inspection will not disclose the defect. But, in 
general, if a man sold a blind horse, without in any way refer- 
ring to the defect, or claiming that the horse was in every way 
sound, even though he received a large sum for the animal, he 
would not in the legal sense have committed fraud 

NATURE OF THE REPRESENTATION. 

It is also the rule that a mere opinion does not constitute 
a representation. To say, for instance, that a certain horse can 
trot in two-forty is an opinion; and though, as a matter of fact, 
the horse cannot trot in six minutes, there is no fraud; to allege 
positively, however, that the horse has done a mile in two- 
forty, would no longer be opinion, but a positive statement, 
and this, if untrue, might lay the person who made it open to 
an action for fraud. 

Another of the elements required is that a repre- 
sentation was made with intent to deceive; the actual 
intent to deceive is, of course, sufficient, but other things have 
also been held from time to time to constitute such an intent. 
It is sometimes said that if one state a fact as of his own knowl- 
edge, when as a matter of fact, he has no knowledge 
on the subject, the law will find an intent to deceive; it 
has also been held that to make a statement recklessly, not 
caring whether it be true or false, shows sufficient intent to 
deceive ; there is a variance of opinion in the several states, as 
to the case where an untrue statement is made in the honest 
belief that it is true, by a person who, nevertheless, ought to 
have known that it was untrue ; the better opinion in this last 
case is that there is not here sufficient intent to deceive. The 



86 Negligence, Trespass and Fbaud. 

law will find that the statement was made with intent that it 
was to be acted upon when either there was that express intent, 
or it was made under such circumstances as would lead a rea- 
sonable man to suppose that it might be acted upon by some 
other person. The statement must as a matter of fact be 
relied upon; for example, if, in the horse trade, the seller 
praised the animal highly, but the buyer, paying no attention 
to this dealer's talk, made his own examination and relied 
entirely upon his own conclusions, without reference to what 
was said at the time of the bargain, there would be no action 
against the seller, even though what he said were untrue and 
fraudulent. The rule would, of course, be changed where a 
man not familiar with horses did not look at all at his pur- 
chase until after he had bought it, relying entirely upon what 
the dealer had said. If defects are specially patent and obvi- 
ous, the law will assume that the buyer must have seen them, 
and could not have acted on any statement which was to the 
effect that they did not exist. Thus if a man bought a three- 
legged horse on the seller's assertion that the animal was 
sound in body and limb, and a splendid racer, the purchaser 
would probably be unable to recover against the dealer. The 
law will not grant an action for every minor statement; it 
must appear that the representation complained of was mate- 
rial, and also that injury has come from the fact that it has 
been acted upon. 



CHAPTEK VHL 

NUISANCES. 

Public Nuisances — Encroachments That are Not Nuisances — Obsolete 
Public Nuisances — Noxious Trades and Callings — Prescription — 
Private Right of Action for Public Nuisances — Private Nuisances 
— Landlord and Tenant — Easements for Light and Air — Smoke — 
Noxious Vapors — Disagreeable Odors — Noises — Prescription — Mu- 
nicipal Corporations — Authorized Nuisances — Private Nuisances 
not Authorized when Property is Taken— Damages Paid in Ad- 
vance — Remedies for Nuisances — Abatement — Remedies at Law 
and in Equity. 

Everyone who enjoys his own property in a manner which 
materially violates the rights of another, or of the public, has 
committed what is in law a nuisance and has given a right of 
legal redress against himself. Negligence consists in doing a 
lawful act in a careless or unlawful manner, while in nuisance 
the act itself is unlawful. Nuisances usually arise out of the 
management of real property and usually consist of a series of 
annoyances rather than in any one single act. There is an 
important legal distinction between nuisances which injure 
rights common to all and produce damages common to all, 
called public nuisances, and acts which interfere with private 
rights and damage one or only a few persons; these are called 
private nuisances. Sometimes a nuisance may be public in its 
character and yet especially injure some one person or set of 
persons. In such case both the public and the private persons 
suffering especial damages may have good ground for legal 
redress. 

PUBLIC NUISANCES. 

These must be annoyances to the public so extensive that 
they cannot be said to be confined to a few persons. Acts 

which affect the public morals are of this class. Bawdy 

87 ' 



88 Nuisances. 

houses, houses of assignation, indecent exposure in a public 
place, loud outcries and profane cursing and swearing in the 
public streets, houses where gaming, drinking and general dis- 
turbances to the scandal of the neighborhood are customary, 
theaters used for low and vicious plays, are all of this class. 
Acts which affect the public health, such as a person afflicted 
with a contagious disease exposing himself in a public place, 
selling diseased meat and adulterated food, are nuisances. 
The carrying on of noxious and offensive trades in public 
places would also come under this head. Acts which endan- 
ger the public safety such as keeping gunpowder, nitro-gly- 
cerine or other explosives in places where they are a menace 
to the public s are nuisances. Acts which interfere with the 
public convenience and the course of trade and commerce, 
such as the obstruction of highways, and waterways are nui- 
sances. 

ENCROACHMENTS THAT ARE NOT NUISANCES. 

While every obstruction of traffic in a highway is a public 
nuisance, it does not follow that every encroachment upon the 
land set apart for the public easement is a nuisance. The 
building of a wall or fence over the line, or the extension of 
a building into the highway, which do not constitute obstruc- 
tions or interfere with travel, while wrongful acts for which 
the public has a redress, are not legal nuisances. 

OBSOLETE PUBLIC NUISANCES. 

Under the old laws a common scold was a nuisance. This 
offense was confined to the female sex. Our ancestors were 
wont to employ ducking in a pond as a legal remedy, but 
whether it proved ineffectual in preventing feminine loqua- 
city or women have ceased to scold in such a manner as to 
annoy the public, the law in this respect has been suffered 
to become obsolete. Eavesdroppers, persons who went about 
listening to private conversations behind doors and tattling 
about them, were formerly public nuisances; but it is a gen- 
eration since anyone has been indicted for the nuisance of 
eavesdropping. 



Nuisances. 89 

noxious trades and callings. 

In order that any business shall be a public nuisance it 
must be conducted in a place where the public is seriously 
inconvenienced. In fact it is the place chosen rather than 
the act itself that constitutes the wrong to the public. A 
slaughterhouse in the middle of an uninhabited marsh would 
not be a public nuisance; but were the same business con- 
ducted in the same manner in the middle of a public square 
in a densely populated city, the liability would be clear. The 
time chosen as well as the place may have a bearing. A busi- 
ness which requires the production of loud noises in the 
middle of the night whereby the public rest is unnecessarily 
disturbed might be a public nuisance, when the same noises in 
the daytime could not be said seriously to discommode any- 
one. 

PRESCRIPTION. 

The question sometimes arises whether a business is a 
nuisance when the place was originally properly chosen and 
the public has built about it and then complains of the charac- 
ter of the business as a public annoyance. It is sufficient to 
say that no one can acquire by any lapse of time whatever, a 
prescriptive right to commit a public nuisance. It is in the 
nature of an offense against the public. It is or may be pun- 
ishable by indictment and criminal prosecution. No one who 
does a criminal act can acquire any rights by pleading that 
he has been a criminal for a long time ; or that when he began 
doing the act, made by statute a criminal offense, it was not 
then against the law. 

PRIVATE RIGHTS OF ACTION FOR PUBLIC NUISANCES. 

No person can maintain an action for damage from a com- 
mon or public nuisance where the damage is common to all. 
Where the public at large is injured, it, and it alone, must 
undertake the remedy of the evil. The public is able to fight 
its own battles. But it may and often does happen that a 
public nuisance also produces especial injuries to private per- 



90 Nuisances. 

sons, which are not the same as those suffered by the public at 
large. Such injuries give a right of action; but such action 
is based upon the special damage to the particular individual, 
and the public still preserves its right to its own redress. The 
application of these principles to particular facts are some- 
times difficult. One person may frequently be in the habit 
of using a public road. But unless he can show some special 
damages to his property from loss or delay resulting from the 
obstruction thereof, the mere fact that he happens to be 
inconvenienced more frequently than the rest of the public 
gives him no standing in court. On the other hand, if the 
obstruction which blocked the road also interfered with his 
right of access to the highway from his own property, his pri- 
vate cause of action, apart from the general public wrong, 
would be clear. Personal injuries sustained by one not him- 
self at fault are always actionable where they are the result of 
a nuisance, and always afford the special damages necessary to 
give a private right of action in the case of a public nuisance. 
!No amount of care on the part of the person committing the 
nuisance will save him from liability. It is the act that is 
wrong and not the manner of doing it that is complained of. 

PRIVATE NUISANCES. 

These usually consist in such use of one's own real estate 
that it unreasonably interferes with the enjoyment of their 
property by his neighbors. The permitting of eaves to over- 
hang so that they drip on another's land; or trees to branch 
over another's property is a nuisance. Other private nuisances 
may be enumerated as follows : Depositing offensive material 
on one's land, which makes the atmosphere in the neighborhood 
foul, keeping explosives in a place where neighbors may be 
injured, allowing diseased animals to run at large, causing the 
pollution of one's neighbor's water, and the like. As the 
obstruction of a public way is a public nuisance, so the 
obstruction of a private way is a private nuisance. 



Nuisances. 91 

landlord and tenant. 
In general the landlord is not liable to the tenant for the 
condition of the rented premises. If the j fall into such a con- 
dition that the j become untenantable, the tenant stays there 
at his own risk. When the landlord creates the nuisance he is 
liable as far as others are concerned, and if the tenant main- 
tains it he is also liable. If the nuisance was both created and 
maintained by the tenant, the landlord is free from liability 
altogether. 

EASEMENT FOR LIGHT AND AIR. 

In the old days every owner of property had the right to 
have the light come to him free from obstruction from his 
neighbor, provided his windows had been accustomed to 
receive such light for many years. This, in America, is no 
longer the law, not being adapted to the conditions of modern 
city life and the construction of our sky-scraping buildings, 
nor is the rule of any force in the rural districts, though the 
question there seldom arises. But everyone has the right to 
have the air diffused over his premises in its natural state, free 
from all artificial impurities. The right to pure air is just as 
well recognized as the right to pure water, and is just as effect- 
ually protected by the law, and the right is subject to similar 
restrictions. It cannot be expected that air in densely popu- 
lated districts should be as pure as in open woods and fields, 
but the air must be kept as free and pure as can reasonably be 
expected, in view of the locality and the business of the coun- 
try. Everyone who uses his property in such a way that it 
produces an unwarrantable impregnation of the atmosphere 
with foreign substances to the detriment of others, creates a 
nuisance. 

SMOKE. 

One of the most common sources of nuisance, by which the 
atmosphere is rendered impure, is smoke. Everyone who burns 
a fire in his house must produce some smoke and pollute the 
air to some slight degree. There must be material and tangi- 



92 Nuisances. 

ble damage in order to give complaint against pollution from 
this source. It usually comes as the consequence of the use of 
fuel in an improper way by some factory. The location of the 
factory will have a considerable bearing on the question of 
nuisance. The use of soft coal in a densely populated city, 
without the precaution of an effective smoke consumer, is 
almost always actionable, where damage is occasioned by its 
use. and can be proved. There must be a sensible impairment 
of personal comfort or a perceptible injury to property. The 
latter may consist of the discoloration of buildings, injury to 
vegetation, the deposit of cinders, the soiling of clothes hang- 
ing up to dry, and the like. The mere fact, on the other hand, 
that the nuisance complained of only produced slight dam- 
ages, while the loss to the person creating the nuisance will 
be great if he has to discontinue it, is of no importance. One 
cannot be given the right to injure others merely because it 
will be of great profit for himself to do so. The fact that a 
business cannot be carried on at a profit if hard coal be burned, 
gives no one the right to burn soft coal in such a manner that 
a nuisance is created. 

NOXIOUS VAPORS. 

The owner of property has the right to have air come to 
him free and clear from noxious vapors which are hurtful to 
his health or deleterious to animal or vegetable life. Lime 
kilns, breweries, lead works, soap factories and the like have 
been declared by the courts to be nuisances where they have 
disseminated noxious vapors about the neighborhood. The 
legal difficulties in such matters are rather with the proof of 
the particular damage, and that it was caused by the concern 
claimed to be the offender, rather than with the principles of 
law applicable. 

DISAGREEABLE ODORS. 

The corruption of the atmosphere by any use of property 
which produces noisesome stenches is a nuisance. The dis- 
agreeable odor must be sufficient to produce actual discomfort 



Nuisances. 93 

to a reasonably sensitive person and materially interfere with, 
the comfortable enjoyment of property to be actionable. The 
fact that the smell is not hurtful to health is no defense as long- 
as it is disagreeable and produces serious annoyance. Under 
this head slaughter-houses, privies, hog sties, cattle yards, soap 
and bone boileries, glue factories, and livery stables have, 
under the special circumstances of the cases before the courts, 
been declared nuisances. In these, as in all similar cases, the 
place chosen for the work and the amount of discomfort pro- 
duced have been factors in determining the result. 

NOISES. 

One not only has the right to have pure water and pure 
air, but he is also entitled to enjoy his property in quiet. The 
legal importance of the right to rest will increase in this coun- 
try as its physical importance increases. The world is 
too noisy for health and happiness. Of course no trifling or 
occasional noise will give the right of action for a nuisance. 
But noises produced at a time and place, and in a manner to 
produce material discomfort to persons of ordinary sensibility, 
are nuisances. Both time and place in a matter of this sort 
necessarily are important. The unnecessary ringing of bells 
and blowing of whistles in the middle of the night; or Sunday 
morning, while worshipers are in church; or near a school, in 
school hours, are nuisances. The maintaining o£ noisy fac- 
tories in residence districts, such as running triphammers or 
hammering iron and steel, or the running of vibrating machin- 
ery in a tenement used by others as a dwelling, have all been 
held by the courts to be nuisances. On the other hand, the 
noise made by children at play in a school yard has been held 
not to be an unreasonable use of property, even though the 
fact that a school was established in the neighborhood hurt 
the value of property. 

PRESCRIPTION. 

"While one cannot acquire the right to commit a public 
nuisance by any length of custom or usage, the case is ordinar- 



94 Nuisances. 

ily different in the matter of a private nuisance. Whether the 
nuisance is itself a public nuisance, producing special damage 
to individuals; or whether it is one in which the public has no 
concern, is often very difficult of practical application. Most 
of the nuisances of noise, smoke, vapors and the like, may be 
public or private, according to the particular circumstances of 
the case; and the difficulty of applying the principles to the 
facts is here, as everywhere else, the element which makes law- 
suits uncertain quantities. 

MUNICIPAL CORPORATIONS. 

In general it may be said that a municipal corporation, 
either city or town, cannot maintain a nuisance itself or give 
a license to a private person or corporation to maintain one, 
unless it has clear legislative authority to do so. As far as 
streets and highways are concerned, however, this authority is 
almost always delegated in the municipal and town charters. 

AUTHORIZED NUISANCES. 

Legislative authority to do an act will ordinarily excuse 
the one who does it from the penalties of maintaining a nui- 
sance, when its maintainance was necessary to the exercise of 
the powers granted; but such powers must be employed in 
good faith, with reasonable care and skill ; and there must be 
a proper use of the delegated governmental powers. For 
example, the authority to construct and operate a steam rail- 
road would not give authority to use locomotives with defect- 
ive flues that scatter live coals broadcast and set fires along 
the path, 

PRIVATE NUISANCES NOT AUTHORIZED WHEN PROPERTT 

IS TAKEN. 

That which is authorized by the legislature within the 
scope of the powers given cannot be a public nuisance; but it 
may be a private nuisance and the legislative grant is no pro- 
tection, if the private nuisance amounts to the taking of pri- 
vate property. The legislature can no more authorize any one 
to commit nuisance upon my land than it can take the land 



Nuisances. 95 

itself. Here again the question whether the nuisance com- 
mitted is public or private, under the circumstances of the 
particular case, becomes of great legal importance. The pro- 
tection of the legislative authority must clearly be given in 
order to have it effectual. The courts will not readily assume 
a legislative intention to confer powers which are harmful to 
others; and will be more apt to construe the acts claimed to 
be protected as beyond the scope of the powers granted. 

DAMAGES PAID IN ADVANCE. 

Where private nuisances are committed by railroad com- 
panies and other concerns, having acquired rights of way by 
means of purchase or by taking the property in condemnation 
proceedings, the question also arises whether the right to com- 
mit the particular nuisance complained of, was not acquired 
and paid for, when the property was originally purchased. 
Any usual and customary incident of the business, even where 
it amounted to a private nuisance, would probably be held to 
be included in the view of the parties, when the property was 
bought or the damages for taking it fixed. 

REMEDIES FOR NUISANCES. 

As has been said already, the public alone can remedy a 
public nuisance. The proper authorities can secure the indict- 
ment of the offending individual or corporation, can seek an 
injunction from the equitable courts, or can sue at law for the 
damages. The proper authorities in a proper case might also 
order the nuisance abated. Private persons cannot abate a 
public nuisance unless they suffer special damages therefrom. 
They can abate a private nuisance under proper circumstances, 
sue in equity for an injunction, or at law for money compensa- 
tion. 

ABATEMENT. 

This means simply taking the law into one's own hands 
and doing away with the nuisance by removing it, without 
doing any unnecessary damage in the process. Like any other 
case where a man takes the law into his own hands, he does so 



96 Nuisances. 

at his own peril, and if the nuisance is of any more important 
character than some mere obstruction in a highway, it is a 
proceeding likely to get one into trouble and generally pro- 
ductive of little good. The fact of the matter is that there are 
few nuisances which are practically susceptible of abatement. 
One cannot tear down a whole factory because its chimney 
annoys him with its smoke. He cannot enter a bawdy house 
next door, smash the furniture and turn the inmates out of 
doors because the presence of the house interferes with his 
enjoyment of his property. He may cut down the branches 
of a tree which project over the fence upon his lot, but if he 
undertook to saw away the eaves and gutters of his neighbor's 
house that projected over the lot line, he would probably have 
to pay for his fun when the case came into court unless he 
could saw pretty close to the line. 

REMEDIES AT LAW AND IN EQUITY. 

These are damages for the injury sustained in the way of 
money and an injunction prohibiting the continuance of the 
nuisance. Their selection and prosecution belong to the attor- 
ney in charge of the case, and the subject is not within the 
scope of this work. 



CHAPTEE IX. 
ELEMENTS OF CONTRACT. 

What is a Contract — Meeting of the Minds — Form or Consideration — 
Illustration of what may be Legal Consideration — What Contracts 
must be in Writing — Parties — The Subject Matter — Wagers and 
Sunday Contracts. 

"We now come to the consideration of the principles of law 
which concern the making and enforcement of agreements 
which are of such a nature that they have become legal obliga- 
tions. In the old days, any breach of an agreement, which 
was of such a character that the law would undertake to 
enforce it at all, was regarded as a kind of actionable wrong. 
At the commencement of the suit the defendant was arrested, 
much as though he had committed some offense. If the debt, 
arising out of the contract, was not paid, the debtor was 
imprisoned; and the old fashioned novel was dull indeed 
which did not, at one time or another, land the hero in a 
debtors' prison, in the course of his adventures. It has come 
to be recognized, in these more humane days, that to imprison 
a man for debt may take away the very chance, which he 
might otherwise have, of earning the money with which to 
pay it ; and that a hardship is inflicted upon him and all those 
dependent upon him, out of all proportion to any satisfaction 
accruing to the disappointed creditor. The law has also come 
to recognize a decided difference between actions arising out 
of the mere breach of a contract and out of the commission 
of some actual wrong. Almost every transaction in life has in 
it some of the elements of a contract. Whether or not the 
elements are such that they come within the legal definition 
of a contract is another question. 

97 



98 Elements of Contract, 

what is a contract? 

A contract is said to be an agreement enforceable at law. 
A contract differs from an obligation, for it is a moral obliga- 
tion, for instance, to tell the truth; and a contract differs from 
a simple agreement, because one might agree to go to dinner, 
but yet it is clear that a violation either of this moral obliga- 
tion to tell the truth, or of this agreement to go to dinner 
could not lay one open to an action for breach of contract. It 
is said, in law, that to make a good contract there must be a 
"meeting of the minds," form or consideration, parties cap- 
able of contracting and a proper subject matter. 

MEETING OF THE MINDS. 

For a meeting of the minds there must, of course, be an 
offer made, and that offer must be accepted. The offer and 
the acceptance must not vary. It sometimes happens, for 
instance, that a seller offers a horse for $100, the buyer 
responds with a bid of $80, and the seller answers that the 
horse may go for $90. Here the minds have not met and 
there is no basis for a contract. If, on the other hand, after 
the buyer had made his offer of $80, the seller had accepted 
that amount, there would have been a contract. Some rather 
curious questions arise as to the making of contracts by letters 
and telegrams; if the transaction is by mail, it is usually held 
that the contract is complete when the letter accepting the 
offer is mailed. On the other hand, a contract made by tele- 
graph is usually not completed until the answering telegram 
is received. This might result in a rather odd state of affairs : 
Suppose that Mr. A. write Mr. B., offering to sell him a horse 
for $100. B. mails a letter to A. accepting the offer; a few 
moments later he repents of his action and dispatches a tele- 
gram to A. to the effect that he will not buy the horse at that 
price; the telegram reaches A. before the letter; nevertheless 
the contract is made, and A. may hold B. upon it, because 
the transaction was complete when the letter was mailed. 
Sometimes parties agree that their transactions shall be by 



Elements of Contract. 99 

telegram, and it is then generally held that the contract is 
complete when the accepting telegram is dispatched. The 
custom of the parties may also be taken into account. Thus 
in one instance, where a theatrical manager had been accus- 
tomed to receive acceptances of contracts in a private letter- 
box, it was held that where an actress did not mail her accept- 
ance, but simply placed it in - this box, there was a contract, 
though the manager asserted that he had never received the 
acceptance, and he was obliged to pay the actress for the time 
for which, according to the contract, she was to have been 
employed. 

It is not necessary that this offer should be made to 
any definite person. In England, not long ago, a patent 
medicine concern, known as the Carbolic Smoke Ball Com- 
pany, offered by advertisements to pay one hundred pounds to 
any one who contracted influenza, after using their smoke 
ball three times daily for two weeks, according to printed 
directions. Mrs. Carlill used the smoke ball, as required by 
the directions, but afterwards suffered from influenza, and 
sued the company for the promised reward. The company 
was held liable, although it was urged on its behalf that a 
notification of the acceptance should have been made to the 
company. The court held, however, that the offer was so 
general that an acceptance in this case was not necessary. 
Although the offer may thus be made to an unascertained 
person, it must appear that the offer was acted upon. For 
example, where a reward is offered for the arrest of a crim- 
inal, and a constable arrests the criminal, and after making 
the arrest, for the first time hears of the reward, he will not be 
allowed to claim it. 

FORM OR CONSIDERATION. 

The words describing the second element of a contract are 
usually used in this order, because if a contract is under seal a 
consideration will be presumed. Under the old law a seal was 
always a wafer or a bit of wax on the paper. Now, however, 
in most states, a scroll with a pen is sufficient, though to be 

LofC. 



100 Elements of Conteact. 

safe it is always well to write also the letters "L. S." In gen- 
eral every paper which is to be recorded must bear a seal 
There are other reasons also why it is of advantage to have 
contracts placed under seal. If one desire to give an agent 
authority to execute a deed, the power of attorney in giving 
this right must be under seal, and so of the same grade as the 
deed which is to be executed. The period within which an 
action must be brought to enforce a contract under seal is 
longer than the period within which a contract which is sim- 
ply signed or made by word of mouth, may be sued upon. 

Every contract must have a consideration. Frequently 
the contract recites one dollar as a consideration, and it is a 
good plan to put the words "in consideration of one dollar" 
in every contract, though they are not always necessary. As 
a matter of fact, a dollar is seldom paid over on the making of 
a contract, but if there be doubt in the minds of the parties 
as to whether there will be sufficient consideration, without 
the dollar, the payment of a dollar will in most cases be a 
good investment for the man who wishes to secure a valid 
contract. The consideration may consist, however, of many 
things besides money. It has been said to be some advantage 
to the person making the promise or some harm or inconven- 
ience to the person to whom the promise is made. Some 
authorities go so far as to say a change of position on either 
side is sufficient to form a consideration; this, however, is 
somewhat vague, and probably should not be relied upon as a 
consideration, as a general thing. People often have a legal 
right to do things which will do them no good, and though 
they may be positively benefited by giving up this right, yet 
the law will find in such a sacrifice a consideration. 

ILLUSTRATION OF WHAT MAY BE LEGAL CONSIDERATION. 

At a golden wedding some years ago one of the relatives, 
in the presence of the family and the guests, promised his 
nephew that if he would refrain from drinking, using tobacco, 
swearing, and playing cards or billiards for money, until he 
became twenty-one years of age, he would pay him $5,000. 



Elements of Contract. 101 

His nephew, who was then about sixteen years old, performed 
his part of the agreement faithfully, certainly being in no way 
harmed by his abstinence, and on reaching his majority wrote 
the nncle a letter asking for the money. The uncle replied 
that the money was the young man's, and the sum was some 
years later collected in an action at law from the uncle's exec- 
utor, the old man having died in the meantime. The question 
here was whether there was any consideration for this contract, 
and the court found a sufficient consideration in the boy's 
agreement not to drink, smoke, and play billiards for money 
until he was twenty-one. The uncle's letter to the nephew is 
quoted in full in the case, and it gives such an interesting 
description of the struggles of a self-made man that it is 
introduced here: 

<orr 17 o. t "Buffalo, Feb. 6, 1875. 

YV. h. otory, Jr.: ' 7 

"Dear Nephew — Your letter of the 31st ult. came to hand 

"all right, saying that you had lived up to the promise made 

"to me several years ago. I have no doubt but you have, for 

"which you shall have five thousand dollars, as I promised 

"you. I had the money in the bank the day you was twenty- 

"one years old that I intend for you, and you shall have the 

"money certain, Now, "Willie, I do not intend to interfere 

"with this money in any way till I think you are capable of 

"taking care of it, and the sooner that time comes the better 

"it will please me. I would hate very much to have you start 

"out in some adventure that you thought all right and lose 

"this money m one year. The first five thousand dollars that 

"I got together cost me a heap of hard work. You would 

"hardly believe me when I tell you that to obtain this I shoved 

"a jackplane many a day, butchered three or four years, then 

"came to this city, and after three months' perseverence, I 

"obtained a situation in a grocery store. I opened this store 

"early, closed late, slept in the fourth story of the building in 

"a room thirty by forty feet, and not a human being in the 

"building but myself. All this I done to live as cheap as I 

"could to save something. I don't want you to take up with 

"this kind of fare. I was here in the cholera season, '49 and 

"'52, and the deaths averaged 80 to 125 daily, and plenty of 

"smallpox. I wanted to go home, but Mr. Tisk, the gentleman 



iC 



a 



102 Elements op Contract. 

"I was working for, told me if I left them, after it got healthy, 
"he probably would not want me. I stayed. All the money 
"I have saved I know just how I got it. It did not come to 
"me in any mysterious way, and the reason I speak of this i3 
"that money got in this way stops longer with a fellow that 
"gets it with hard knocks than it does when he finds it. 
Willie, you are twenty-one and you have many a thing to 
learn yet. This money you have earned much easier than I 
"did, besides acquiring good habits at the same time, and you 
are quite welcome to the money; hope you will make good 
use of it. I was ten long years getting this together after I 
"was your age. ]STow, hoping this will be satisfactory, I stop. 
"One thing more. Twenty-one years ago I bought you fifteen 
"sheep. These sheep were put out to double every four years. 
"I kept track of them the first eight years ; I have not heard 
"much about them since. Your father and grandfather prom- 
ised me that they would look after them till you were of age. 
"Have they done so? I hope they have. By this time you 
"have between five and six hundred sheep, worth a nice little 
"income this spring. Willie, I have said much more than I 
"expected to: hope you can make out what I have written. 
"To-day is the seventeenth day that I have not been out of 
"my room, and have had the doctor as many days. Am a 
"little better to-day; think I will get out next week. You 
"need not mention to father, as he always worries about small 
"matters. Truly yours, W. E. Story." 

"P. S. — You can consider this money on interest." 

Another uncle's promise, which was attacked on the 
ground that there was no consideration, is explained by the 
following letter written by an English gentleman to his 
nephew: 

"My dear Lancey — I am so glad to hear of your intended 
"marriage with Ellen Nicholl, and as I promised to assist you 
"at starting, I am happy to tell you that I will pay to you 150 
"pounds yearly during my life and until your annual income 
"derived from your profession of a chancery barrister shall 
"amount to 600 guineas, of which your own admission will 
"be the only evidence that I shall require. 

"Your affectionate uncle, 

"Charles Shadwell." 



Elements of Conteact. 103 

When an action was brought to collect on the promise in 
this letter, it at first seemed difficult to find a consideration; 
for the nephew had already promised Ellen jSTicholl that he 
would many her, and clearly there could be no consideration 
in his promise to do what he was already bound to do. It has 
been pointed out, however, that the young people might, if 
they had chosen, have broken the engagement by common 
consent, and that in the nephew's marriage despite this possi- 
bility, there was a consideration. This view of the facts may 
have influenced the court, which at all events found there 
had been a consideration, and directed a continuance of the 
annuity, which had fallen into arrears after the uncle's death. 

WHAT CONTRACTS MUST BE IN WRITING. 

It has already been pointed out that deeds or contracts 
which are to be recorded must be under seal, and there are 
some additional agreements which also should bear a seal, and, 
of course, any contract which is to be under seal must be in 
writing. There are, however, certain other contracts which, 
by a special rule of law, should be in writing. This rule is 
known as the Statute of Frauds, and has come down to us 
from the law of England. The statute exists, so far as the 
writer knows, in all the states of the Union, though its terms 
are much varied in different localities. It may be said, how- 
ever, that six kinds of contracts must, as a general thing, be 
written to comply with the terms of this statute. The shortest 
way to explain what these contracts are will probably be to 
quote this section relating to them from the original Statute 
of Frauds : 

"No action shall be brought to change any executor or 
"administrator upon any special promise to answer damages 
"out of his own estate; or whereby to charge the defendant 
"upon any special promise to answer for the debt, default or 
"miscarriage of another person; or to charge any person upon 
"any agreement made in consideration of marriage; or upon 
"any contract or sale of lands, tenements or hereditaments, or 
"any interest in or concerning them; or upon any agreement 
"that is not to be performed within the space of one year from 



104 Elements of Contract. 

"the making thereof; unless the agreement upon which such 
''action shall be brought, or some memorandum or note 
"thereof shall be in writing, and signed by the party to be 
"charged therewith or some other person thereunto by him 
"lawfully authorized." 

The first of these contracts covers the case, of course, 
where an executor or an administrator agrees to pay out of his 
own pocket a debt which is really owing by the estate which 
he represents. The second relates to guaranties and indorse- 
ments, which must always be in writing to be enforceable. 
The third, described in the statute as an agreement made in 
consideration of marriage, does not apply to engagements, but 
to agreements by which, in return for a marriage, the party 
promises to^do something. The fourth, covering any con- 
tract or sale of lands or any interest in or concerning them, 
relates not only to deeds, but also to the sale of certain things 
which adhere to and in a sense form a part of the land; as, 
for example, growing trees or ungathered fruit in an orchard. 
While it is not necessary that there be a writing for the sale 
of all property of this kind, yet in disposing of growing crops, 
ice, trees, nursery stock or any similar interest, it is the safer 
rule to employ a writing. The words "tenements" and "hered- 
itaments" are simply terms of the real property law, which 
need not particularly concern those who are not lawyers. The 
fifth contract which must be written, it will be noticed, is an 
agreement which is not to be performed within the space of 
one year from the making thereof; so an agreement by which 
an employer secured the services of a servant for a year, to 
commence on the first of the following month, would be one 
which would not be performed within a year of the time of 
making, and would have to be in writing. 

The section of the old statute relating to the sixth kind of 
contract, which must be written, has been somewhat freely 
changed in various states, but it may be said in general that 
any contract for the sale of goods, where the price is $50 or 
over, is not enforceable by action unless a part of the goods 



Elements of Contract. 105 

be accepted and received by the buyer, or unless something 
be given by way of earnest to bind the bargain, or in part 
payment, or unless there be a writing signed by the party to 
be charged, or his agent. It cannot be stated that the 
amount is fixed in all states at $50, and the safest rule is, 
wherever there is a contract for the sale of goods for a price 
exceeding a few dollars, to have a signed writing. 

PARTIES. 

To secure a contract there must also be parties who are 
able to enter into a valid agreement. While some people are 
incapacitated from contracting by old age or illness, as a gen- 
eral thing a contract may be made by anybody except infants 
and insane persons. The old rules forbidding married women 
to make contracts have now been largely done away with. An 
infant, as has already been pointed out, is generally a person 
who is under twenty-one years of age, though in some states 
girls become of age at eighteen. Infants' contracts are said 
by the law to be voidable; that is to say, while they ordinarily 
may not be enforced against the infant during his minority, 
yet he may, if he desire, ratify his contract on becoming of 
age, and then will be held liable. The rules differ in the sev- 
eral states as to the right of an infant to enter into a contract, 
waste the money or profit he derives from his bargain, and 
then to demand back the property which has passed from him 
to the other party to the contract. Generally speaking, while 
the courts will compel the infant so far as possible to put the 
other party in the position where he was before the contract 
was made, yet if it be impossible for the infant to do this, the 
courts will still compel the return of the property received 
from the infant. Thus it will be seen it is most dangerous to 
enter into a contract with infants, and that this is a dealing 
always to be avoided. 

One kind of contracts made by infants the law, in 
a measure, enforces; these are the agreements by which 
children obtain necessaries; the law reasoning that these 
contracts must be sustained or otherwise infants might occa- 



106 Elements oe Contract. 

sionally starve to death, although they were possessed of 
ample means. These transactions, however, are not enforced 
in just the same way as the contracts of an adult ; for example, 
if an infant bought a loaf of bread, the court would enforce 
his agreement to pay for it, but only up to the point of com- 
pelling him to pay a reasonable price ; and so if the infant had 
bargained to pay a dollar for the loaf, the court would f orco 
him to pay not a dollar but only the five or ten cents which the 
bread was worth. What are necessaries is always a vexatious 
question, depending largely on the situation in life of the par- 
ties concerned. A young lad in England who was wealthy in 
his own name, his friends also being people of wealth, was 
compelled to pay for an expensive piece of jewelry which he 
had purchased as a present for one of these friends, on the 
ground that it was necessary. Manifestly a contract of this 
character made by the son of a small wage earner would not be 
enforced, because for that infant the law would consider as 
necessaries only food, lodging, clothes, tools and the like. 

The law as to contracts made with insane people is in 
much confusion. An idiot, of course, cannot make a contract 
of any kind, because he has no mind; or, at any rate, not 
enough mind for such a task. Some men who are really 
insane appear to be rational enough on the great majority of 
subjects; when a contract is made with one of this class by a 
person who does not know that he is dealing with an insane 
man, the law is apt to enforce the contract if it be a reasonable 
and just agreement. It is generally held, however, that where 
a man has been declared insane by a regular judicial proceed- 
ing, this is sufficient notice to all the world that any one deal- 
ing with him does so at his risk, and the contracts of those 
thus declared incompetent are not enforceable. 

THE SUBJECT MATTER. 

In addition to all the elements of which we have alreadj 
spoken, there must be a legal subject matter for every contract 
Some contracts are unenforceable because in violation of a 
statute; as for example, those which transgress against the ordi- 



Elements of Contract. 107 

nary provisions against usury ; other contracts are bad because 
they are in violation of the rules of common law ; for example, 
a contract to commit a murder would, of course, be a void 
agreement. 

A common defect in contracts is that they are held to be in 
violation of public policy. It is difficult to define the words 
"public policy," because, for one reason, the idea represented 
is ever changing with the progress of time ; but, in general, it 
may be said that the law scrutinizes closely contracts to influ- 
ence legislation, to facilitate divorce, contracts in restraint of 
trade, and marriage brocage contracts, on the ground that they 
are, or may be, against public policy. A peculiarity of these 
contracts is that when both parties have entered into an agree- 
ment, the man who is being sued has the advantage ; thus, if a 
citizen entered into a corrupt agreement with a lobbyist to 
procure legislation, and paid the lobbyist a thousand dollars 
for his services, and then endeavored to recover back the money 
he paid under this illegal arrangement, the law would hold that 
the parties had been in equal fault and that as the position of 
the defendant would be the better, there could be no recovery. 

As an illustration both of contracts against public policy 
and of the change which is continually taking place in public 
policy, we may speak of contracts in restraint of trade. In 
earlier days any arrangement of this kind was looked upon by 
the law with extreme disfavor. The first case of the kind of 
which we know was a suit on an undertaking given by a dyer, 
binding himself not to use his craft within a certain city for 
the space of a year; the judge before whom the case came 
roundly denounced the plaintiff for procuring such a contract, 
and turned him out of court; such a contract as this would 
to-day, in all probability, be enforced. The practice of the 
courts now is to ask whether the protection is more than is 
necessary for the reasonable safeguard of a person contracting 
for the restraint of trade, or whether the contract tends to 
produce a monopoly. In either of these cases the contract will 
not be enforced, at least in its entirety, by the law. The law 



108 Elements of Contract. 

is also interested to know whether the article in which trade is 
restrained is an article of prime importance, being influenced 
somewhat also by this consideration. If two physicians in 
general practice in a small city entered into an agreement by 
which one sold his trade to the other, and at the same time 
agreed not to practice medicine within that city in the future, 
the law would probably sustain the arrangement. If, however, 
the physician selling out agreed not to practice anywhere 
within the state, the law would probably find that the restraint 
agreed upon was greater than was necessary for the pro- 
tection of the purchasing physician, and would not sustain the 
contract; or, at least, would not sustain it as to cities other than 
that in which it was made. It is well known, on the other 
hand, that ji specialist often has a practice which brings him 
patients from all over his state or even a larger , territory. A 
physician in Philadelphia, who had become famous throughout 
all Pennsylvania in his treatment of cancer, could undoubtedly 
enter into an agreement with a rival specialist in the same 
city, by which the latter bound himself not to practice in the 
future in the state of Pennsylvania; the test is simply that the 
contract may give what protection is necessary and no more. 
Business men sell their wares everywhere that agents win 
their way; therefore it is a matter of more difficulty to deter- 
mine what contracts in restraint of trade among business men 
are reasonable. The law generally holds that the restraint 
must not be absolute, both as to territory and as to time. As 
an illustration of how great a restraint the law will allow, it 
may be pointed out that a contract by which a match manu- 
facturer agreed not to do business in any part of the United 
States, save Nevada and Montana, for a period of ninety-nine 
years, was sustained. The tendency of the law with reference 
to contracts in restraint of trade, is always to treat them with 
more liberality, as the tendency of modern times is more and 
more to do business in great combinations. The same princi- 
ple is applied to agreements between employers and employ- 
ees, and a contract by which an employee agreed that he 



Elements op Contract. 109 

would not, within six months after his employment ceased, 
directly or indirectly, engage in business in the city of his 
employment, or within ten miles of that city, in competition 
with his employer, either on his own account or as an 
employee of others, has been sustained by the court. 

WAGERS AND SUNDAY CONTRACTS. 

Wagers are generally made illegal by statute, and it is not 
possible to collect at law money won in this way. The only 
security for those who engage in this sort of thing lies in hav- 
ing the money deposited with a trustworthy stake-holder at the 
time the bet is made. The law would probably hold illegal on 
this ground the purchase and sale of shares of stock on mar- 
gin ; brokers, however, usually contrive to legalize the transac- 
tion by going through the form of delivery, by passing over 
certificates. The difficulty in securing proper evidence is also 
great here, as is elsewhere pointed out. The law as to Sunday 
contracts varies so greatly that no general rule may be laid 
down. In most states, however, certain kinds of contracts if 
made on Sunday are defective, and it is advisable from a legal 
point of view either to abstain from bargains on Sunday, or, if 
they be made, then at least to have the writing which evidences 
them dated on a week day. 



CHAPTEE X. 
BREACH OF CONTRACT. 

How a Breach May Occur — Rescission — Damages — Measure of Dam- 
ages — Interest — Arbitration — Accord and Satisfaction. 

The only remedy which courts of law as distinguished 
from courts of equity can give for the breach of a contract is 
money damages. In most cases this is quite sufficient, as most 
contracts are of a commercial character and have in view 
sooner or later, a money profit to one party or the other, or a 
value which can justly be measured in money. In other 
cases the breach of contract cannot be remedied or very well 
measured by money, but there is no other relief which can be 
afforded. Eor example, a man promises to marry one woman, 
she waits for him to perform that promise until her youth and 
her beauty are gone, and then he marries another woman. 
Here was a breach of contract. The law cannot find the girl 
a husband. It cannot compel the man to perform the con- 
tract. It can and often does give damages in money, as the 
best thing it knows how to do. Where the contract has been 
broken and the damages cannot well be measured in money 
but it is possible to compel the specific performance of the 
contract itself, courts of equity, as we shall see later, will 
sometimes step in and give the needed relief. We shall con- 
sider in this chapter in what a breach of contract consists; 
under what circumstances money damages therefor may be 
recovered, and how those damages are ascertained. 

HOW A BREACH MAY OCCUR. 

Ordinarily there may be a breach of a contract only when 
one who is called upon to perform, fails to do so. Occasion- 
ally, however, a contract may be broken before the time for 

performance arrives; for example, it was held in England that 
no 



Beeach of Conteact. Ill 

where a man was engaged as a courier for foreign travel, his 
services to commence on June first, and he was told before that 
date that he would not be needed, his action might be brought 
at once. So, too, one party may make performance impossible 
before the time arrives. If A promise to marry B, and then, 
before the day set for the wedding, marry C, it is clear that he 
has made performance of the earlier contract impossible. 
Commonly, however, the breach consists in the failure or 
refusal by one of the parties at the time the performance is 
due; and in the every day dealings in life there will not be 
much difficulty in determining whether or not the contract has 
refusal by one of the parties at the time the performance is 
as to the remedies to which one is entitled on the breach. Of 
these remedies the more important are two, recission and 
damages. 

RESCISSION. 

When the breach of a contract goes to the essence of the 
agreement, a right is given to rescind the contract; that is to 
say, to treat it as though it had never existed. This right 
should of course be exercised at once, and a delay may be 
treated by the law as a waiver of the privilege. It is evident 
that .under certain circumstances it would not do for an 
injured party simply to rescind a contract and then rest on 
his oars. For example, if a salesman entered into an agree- 
ment with a storekeeper for services, and went ahead and per- 
formed services for a month, and then was met by a refusal 
by the employer to pay for the services, or in other ways to 
perform his part of the agreement, the salesman might rescind 
the contract; but to enable him to get out of the contract 
without loss, he would have to bring an action against the 
storekeeper to recover what his services were reasonably 
worth, and this action the law would usually allow him. 

DAMAGES. 

It is clear that in the majority of cases a simpler and easier 
way than rescission is to sue on the contract itself for dam- 
ages. The general purpose of damages is to compensate for 



112 Bbeach of Contract. 

those losses which it is reasonable to suppose must have been 
in the minds of the contracting parties in contemplating a 
breach. A leading case has stated that the rule is "that where 
"a party sustains a loss by reason of the breach of contract, he 
"is, so far as money can do it, to be placed in the same situa- 
tion with respect to damages, as if the contract had been 
"performed." It should be pointed out, however, to make the 
definition complete, that there may flow from the breach 
losses which the parties neither contemplated nor could con- 
template, at the time the contract was entered into, and that 
in such a case the damages of the plaintiff may not be more 
than might have been supposed by the parties to be the natu- 
ral result of the breach of the contract; thus, for example, a 
delay by a repairer in finishing work on a mill shaft, would 
not subject him to pay the miller for the loss of a large con- 
tract which the miller was unable to accept, because by reason 
of the absence of the shaft the mill was not prepared to do 
the work when the business came in. 

In general, future profits which a party expected to 
flow from the execution of a contract, are considered too 
speculative as a basis for damages; but sometimes, if it be 
shown clearly that there would have been some profits, the 
party complaining will be allowed to introduce evidence 
as to what the amount of those profits would have been, 
and to recover accordingly. Punitive damages are sel- 
dom given for breach of contract; they are, however, occa- 
sionally allowed in cases of breach of promise to marry. 
The party suffering from the breach must make reason- 
able efforts to reduce his damages; for example, a clerk, 
hired for a year, must, on breach of the contract by the 
employer, endeavor to secure throughout the year other simi- 
lar employment, so that his loss by the breach may be less- 
ened. It would not be necessary in such a case, however, for 
the clerk to accept employment of a materially different char- 
acter, or at a wage substantially less than that he had been 
accustomed to receive. Though the breach of contract not 



Breach of Contract. 113 

infrequently results in great worry and even mental anguish, 
these sufferings are not looked upon by the law as a proper 
basis for damages, with again an exception in the contract to 
marry. 

MEASURE OF DAMAGES. 

A caterer bought of druggists a bottle of ice-cream color- 
ing known as carlet red, for two dollars, on their representa- 
tion that it was absolutely pure and harmless. The caterer 
thereupon made strawberry ice-cream and apricot ice, using 
earlet red to give them color, and sold them to about forty 
families who were his customers. Some two hundred persons, 
who ate of the cream and apricot ice, became ill with symp- 
toms of arsenical poisoning, and the subsequent analysis of 
the carlet red showed that it contained arsenic. Every one 
would say that the caterer should have damages against the 
druggists ; many, however, would probably say at first thought 
that the damages should be measured by the loss of trade 
which the caterer sustained by reason of distributing poison- 
ous cream to his customers. This, however, would not take 
into consideration the value of the ice-cream and ices destroyed 
by the coloring matter, and the two dollars paid by the caterer 
for the bottle of carlet red. All these items might probably 
enter into the caterer's claim against the druggists. In 
another case merchants agreed to sell to a man in New York 
lumber which was then in Canada, assuring him that it would 
meet certain requirements. The New Yorker refused to 
accept the lumber on its arrival, on the ground that it was not 
of the specified quality. He did allow it to be placed on a 
wharf, however, and paid the freight and duties on the cargo, 
as he had agreed to do. Later, when he brought an action 
for the breach of the contract, it was held that he was entitled 
to recover the amount he had paid for the freight and duties, 
for the storage of the lumber, and damages for failure to 
deliver lumber of the quality specified. It was also ruled that 
damages were properly assessed on the basis of the difference 



114 Breach of Conteact. 

between the value of the lumber contracted for at the place 
of delivery and the contract price. 

INTEREST. 

There are two theories for the payment 01 interest in so 
far as it relates to damages. One is known as contract inter- 
est, and the other as penalty interest. Suppose, by way of 
illustration, that a note, which is of course an agreement to 
pay, were made for one year at four per cent, in a state where 
the legal rate of interest was six per cent. If then at the end 
of a year the note were not paid, an action could be brought 
for its recovery, and interest would of course be allowed. For 
the period measured by the lifetime of the note the law would 
grant interest at four per cent., that being the contract of the 
parties; but for the period which intervened between the 
maturity of the note and the time when judgment was ren- 
dered, interest would be allowed at six per cent., that being 
the legal rate. 

ARBITRATION. 

Where a dispute arises as to a contract, parties sometimes 
instead of going to law agree upon arbitrators. If the arbi- 
trators are careful and intelligent men, this is often a good 
plan ; if they lack these qualities, it is generally cheaper to take 
the case to the courts in the first place, because in all prob- 
ability it will, sooner or later, go there. Though the rules 
for arbitrations differ in the various localities, the general 
plan is for each side to choose one or two persons known as 
the arbitrators, who come together and endeavor to reach a 
decision which shall be embodied in their award. Where they 
are unable to agree, they themselves choose an additional mem- 
ber of their council, who is commonly known as the umpire, 
and he may then cast the deciding vote. Where there is a 
proper agreement for the submission of the dispute to arbitra- 
tion, the law will support the award, if it be final, certain, 
practicable, and in conformance with the facts stated to the 
arbitrators for their guidance. The arbitrators must decide 



Breach of Contract. 115 

the whole matter, leaving no part for the determination of the 
parties themselves or of others. Thus it would be improper to 
find in the award that A owed B one hundred dollars and such 
a sum as the books of the firm should show on the first day 
of the succeeding January; that would be neither final nor 
certain. 

ACCORD AND SATISFACTION. 

Where either or both of the parties to a contract are 
unwilling to carry out its terms or unable to agree as to its 
signification, they may wipe out the old contract by entering 
into a new contract in its place and stead. If A had loaned B 
one hundred dollars, and B, refusing to pay the hundred dol- 
lars, offer to pay ninety dollars and give A a ton of coal and a 
chromo, this would be an accord and satisfaction, and it would 
result in the discharge of the old agreement only when 
accepted by A, and performed in its entirety, even to the giv- 
ing of the chromo. If after A had loaned B one hundred 
dollars, and there was no dispute as to this point, if B offer 
to pay ninety dollars in place of the one hundred dollars, this 
would not be a valid agreement and would not release B from 
his obligation to pay the remaining ten dollars, because there 
is no consideration for the new agreement which results in 
the throwing off of the ten dollars. Strangely enough, if B 
offer instead of the ninety dollars cash, a note for ninety dol- 
lars, then the law might find a consideration for the transac- 
tion on the ground that in the changing of the obligation from 
a mere indebtedness to the indebtedness on the note, there 
had been a change of position, and a consideration, and so 
support the accord and satisfaction. 

In a case where there was an honest dispute between 
a creditor and debtor as to the amount owed, the creditor 
holding it to be one hundred dollars and the debtor 
eighty dollars, an agreement by the debtor to pay ninety 
dollars would be looked upon as a valid accord and satis- 
faction when accepted and performed; the consideration 



116 Breach of Contract. 

being found in the surrender by each of the parties of a 
portion of his claim. This principle is frequently illustrated 
in various transactions where disputes arise between two par- 
ties as to how much is owing from one to the other. There has 
been a sale of a cow, perhaps, and the seller claims the agree- 
ment was for fifty dollars, while the buyer is as positive that 
it was thirty. The buyer then sends the seller a check for 
forty dollars, on which he has written "in full settlement for 
cow sold August first." The seller thinks that he will take 
the forty dollars and then if necessary sue for the other ten, 
so he cashes in the check; but in so doing he loses all claim 
to the other ten dollars, because here are all the elements of 
the complete accord and satisfaction : the old agreement which 
has not been carried out, the offer of a new agreement by the 
buyer, the consideration in the yielding by both parties from 
what they believe to be their rights, the completion of the new 
agreement by the payment and acceptance of the money. The 
man to whom the check is sent may do either one of two things, 
but he must make his choice ; he may cash in the check, take 
his forty dollars and consider the transaction closed, or he may 
return the check to the sender and sue for his fifty dollars. 



CHAPTEK XI. 

LIABILITY OF PERSONS HANDLING THE GOODS 
OF OTHERS. 

Bailments — The Degree of Care Required — The Rights of Finders — 
Bailee's Right to Lien — Common Illustrations of Bailments — 
Warehousemen — Postmasters — Hotel Keepers — Common Carriers 
of Goods— Liability Limited by Contract— Baggage— Telegrams. 

In discussing any legal relation it is scarcely possible to 
avoid employing some of the phrases by which it is known and 
defined in the law. When one person is handling the goods 
of another there is created what the lawyers term the relation 
of "bailment." The person whose goods are handled is called 
the "bailor" and the person handling them is called the 
"bailee." The terms are a mere convenience; and there is no 
real difficulty in apprehending the underlying legal principles 
arising out of a transaction, which is one of the most common 
in everyday life. All the law which concerns the shipping of 
goods, wares and merchandise; hotel keepers; stable keepers; 
warehouses and freight yards ; concerns this so called contract 
of bailment. The important feature to bear in mind, through- 
out the discussion, is that, in a bailment, the title to the prop- 
erty involved always remains in the bailor; and that, conse- 
quently, there is always some measure of responsibility on the 
part of that bailor to the bailee. As soon as the title to the 
specific property ceases to be in some bailor, there ceases to be 
a bailment. We shall now attempt to consider in what a bail- 
ment may consist; and what, under varying circumstances, are 
the mutual rights and obligations of the bailor and bailee. 

BAILMENTS. 

When property is delivered by one person to another, in 
trust, until certain objects are accomplished, and the identi- 

117 



118 Liability in Handling Goods of Others. 

cal thing, either in its original or changed form, is to be 
returned to the first person, or given to a third party, the law 
finds that there is a bailment. Strictly speaking the word 
bailment refers to the article itself, but it is also indifferently 
used to designate the transaction. It is evident under these 
conditions that a bank deposit is not a bailment, since the 
identical money put in the bank is not to be returned to the 
depositor; when he goes to the bank to ask for money the 
teller will give him whatever money is on hand, without 
endeavoring to return the specie originally deposited. When 
a book is loaned we have a good example of bailment. Again, 
if a farmer take wheat to a mill, with the understanding that 
he is later to receive the flour which has been made from that 
identical wheat, there is a bailment. If a letter be given to a 
messenger to mail there is also a bailment, though in this case 
the article is not to return to the person from whom it was 
received. In some of the western states one exception is made 
to this general rule, and that relates to grain elevators; it is 
of course well understood that the owner of the elevator does 
not undertake ordinarily to return the identical grain which is 
placed with him; yet, for reasons of convenience, the law 
sometimes treats this transaction as a bailment. 

THE DEGREE OP CARE REQUIRED. 

Bailments naturally fall into three divisions, those which 
are for the benefit, of the bailor, or person handing over the 
property; those which are for the benefit of the bailee, or per- 
son receiving the property, and those which are for the ben- 
efit of both. If you agree as a favor to me to take care of my 
overcoat while I am inside of a house, that is a bailment for 
the benefit of the bailor; if you borrow my book, that is a 
bailment for the benefit of the bailee ; if you rent my bicycle 
for a month, or if I place my bicycle with you as security for 
a loan, we have a bailment for the benefit of both parties. In 
fixing upon the degree of care expected from the bailee in the 
several cases, the law follows out the reasonable rule, holding 
him responsible for slight care where the bailment is for the 



Liability in Handling Goods op Others. 119 

benefit of the other party, for great care when it is for his own 
benefit, and for ordinary care when it is for the benefit of 
both. By the term slight care is meant not such care as seems 
to be slight to the bailee concerned, but such care as an ordi- 
narily prudent man would consider slight. A customer once 
asked a tavern keeper to take charge of some money. This 
the tavern keeper agreed to do as a favor to the customer, and 
placed the money together with his own money, in a drawer 
in the tavern, and left the room, leaving the drawer open. 
One of those present tapped the till and went off with the tav- 
ern keeper's own money and also that of the customer. It 
was held that the tavern keeper would be liable to the cus- 
tomer, on the ground that he had not exercised slight care, 
although he had treated the other's money as he did his own. 

THE RIGHTS OP FINDERS. 

A finder is evidently a bailee, and as such he has a better 
right to the property found than anybody else save the owner. 
When property is found on the floor of a store or other public 
place, the general rule is that the finder has a better right to 
it than the store keeper, but if it be found on the counter, the 
supposition is that the article has been left there by a cus- 
tomer, rather than lost, and that the store keeper is entitled 
to it, so that it may be returned to the true owner. 

BAILEE'S RIGHT TO LIEN. 

There are two distinct liens in the law, both of which are 
commonly called mechanic's liens. In most states any person 
who supplies material for the construction or completion of a 
building, may, on failure to receive his payment,' file the statu- 
tory mechanic's lien against the property. This is evidenced 
by a paper filed in the county clerk's office. The mechanic's 
lien, of which we are now to speak, however, is an entirely 
different thing, being the right given to one person who has 
added value to a thing, to hold the article as security for the 
payment. This latter lien is technically known as a common 
law mechanic's lien. Thus if I send my book to the binder's 



120 Liability in Handling Goods of Others. 

to have it rebound, the binder may retain the bound book until 
his charges are paid. This principle has ordinarily not been 
extended to the care of animals; that is to say, a livery stable 
keeper, after feeding and caring for a horse for some months, 
would not 'have a lien on that horse for the sum expended by 
him, except in those states where it had been expressly given 
by statute. If one contract be made for repairs on a number 
of articles, the person who has made the repairs may hold 
whatever part of the articles remains in his hands, to secure 
his charges against both the articles which he still has and the 
articles which have been repaired and delivered. An agree- 
ment for credit takes away the right to lien. If the under- 
standing with the bookbinder is that the book is not to be paid 
for until a month after it is bound, just as soon as it is bound, 
I may demand the book and the binder will have no right to 
withhold it from me. 

COMMON ILLUSTRATIONS OP BAILMENTS. 

The principle of bailments is one which enters largely into 
everyday life. The owners of railroads, of canal boats, of 
warehouses, and of grain elevators, hotel keepers, expressmen, 
postmasters, telegraph companies and the proprietors of stage 
lines are all regarded as bailees. 

WAREHOUSEMEN. 

A warehouseman is evidently a bailee for the advantage 
of both parties, and, since he is paid for his storage of the 
goods, he is liable for ordinary care. Warehousemen's 
receipts are not, strictly speaking, negotiable; nevertheless 
they pass from hand to hand in trade with much freedom. 
Advances of money are frequently made upon the faith of 
the statement contained in a warehouseman's receipt that cer- 
tain articles have been received at the warehouse and will be 
delivered to the person presenting the receipt. If a fraudulent 
warehouseman's receipt is used by an agent of the warehouse 
who has authority to show such receipts, and money is 
advanced in good faith upon the receipt, by an outsider, the 



Liability in Handling Goods of Others. 121 

warehouse will generally be liable. These receipts are fre- 
quently stamped "contents unknown/' to indicate that the 
articles have been received in bulk and have not been opened 
b} r the warehouse. In general, however, the warehouse is 
liable only if a receipt is used when no goods at all have been 
received, and not liable for an error in the description of the 
goods, or at least for such an error as could not readily be 
rectified by examination of the bales, without breaking the 
covers. The rules relating to wharfingers are substantially 
those which govern warehousemen. 

POSTMASTERS. 

It is generally held that postmasters are responsible only 
for ordinary caution in the selection of careful servants, and 
that when this duty has been accomplished, the postmaster 
may not be compelled to answer for the negligence or dis- 
honesty of those whom he had reason to believe were compe- 
tent and straightforward. 

HOTEL KEEPERS. 

A hotel, or as it is known to the law, an inn, is a house 
held out to the public as a place where all transient persons 
will be received and entertained as guests. It is always impor- 
tant to determine whether a place of entertainment is an inn, 
since the liability placed by the law upon inn-keepers is much 
more strict than that placed upon boarding house keepers. 
One who stays at an inn is known as a guest, while one resid- 
ing at a boarding house is called a boarder. It will be noticed 
from the definition given of an inn that all transients must be 
received. This of course does not mean that an inn-keeper 
would be obliged to receive a applicant for lodging who was 
suffering from a contagious disease or one who was penniless. 
In some states probably both the law and public opinion would 
authorize an inn-keeper whose house was frequented by white 
people, in refusing admittance to a colored man. Apart from 
these exceptions, however, the inn-keeper may not gratify any 
whims as to whom he shall receive, but must fulfill his duty 



122 Liability in Handling Goods of Others. 

as a public personage in receiving all proper applicants. It 
will be noticed, also, that the inn is for the entertainment of 
transients. 

It frequently happens that a hotel is both a boarding 
house and an inn: a boarding house to those who regularly 
live at that hotel, and an inn to its transient population. 
Some years ago General Hancock, who was then in the army, 
engaged rooms at the St. Cloud hotel in RTew York, under an 
agreement that he would keep them until the following sum- 
mer, if they were satisfactory, and if he were not called else- 
where on military duty. Some property belonging to Mrs. 
Hancock was stolen from her rooms in the hotel, and in deter- 
mining whether the St. Cloud hotel was liable for the loss or 
not, it became important to decide whether the Hancocks 
were boarders or guests. The court decided that they were 
guests, and that the hotel keepers were liable as the propri- 
etors of an inn. 

An inn-keeper is responsible to his guests as an insurer; 
that is to say, when a guest's property is harmed or destroyed 
in an inn, it is not a question whether the inn-keeper was negli- 
gent or not, but the proprietor will simply be called upon to 
pay for the damage done; for example, the hotel might burn 
under such circumstances that the proprietor was in no way 
responsible therefor; nevertheless, he would be answerable to 
the guests for the loss sustained. The same rule would apply 
to theft from a guest while in a hotel, although it could not 
be shown that the landlord's negligence had in any way con- 
tributed to the loss. This rule comes from the old times when 
travelers were dependent for safety upon inn-keepers, and 
when the law had good reason to believe that inn-keepers not 
infrequently plotted with thieves for the despoilment of their 
guests, and then shared the booty with the marauders. The 
law took the simplest way out of the difficulty and said to the 
inn-keeper, "You are to be an insurer of the belongings of 
your guest while he is at your hostelry." 



Liability in Handling Goods of Othees. 123 

There are a few cases in which an inn-keeper is not liable ; 
he is not responsible for loss resulting from an act of the pub- 
lic enemy or from what is known to the law as an act of God, 
which we may define as an occurrence not easily foreseen and 
guarded against, and in which there is no human agency; 
where, for example, a hotel is struck by lightning or carried 
away by a flood, there is held to be an act of God, exempting 
the inn-keeper from liability to his guests, provided that even 
in these trying circumstances the hotel keeper use his best 
efforts to guard the interests of the guests. There are also 
several other lesser instances which relieve the inn-keeper 
from his high liability. It has long been recognized that it 
would be unjust to enable a man to take $20,000, for instance, 
to a hotel, and saddle the proprietor with liability for so great 
a sum, and that it is not right that hotel keepers should be 
liable for jewelry and valuables which their guests might 
carelessly expose to theft or loss. There have, therefore, 
been enacted in most states statutes which provide that 
money, jewelry and the like must be placed in the inn-keep- 
er's safe, and that the inn-keeper shall not be compelled to 
receive valuables to a large amount for safe keeping. These 
statutes are not construed to mean that a man must give up 
his watch, for instance, or that he must empty his pocketbook 
into the inn-keeper's safe. The guest is always allowed to 
keep about his person such money as is necessary for the 
ordinary needs of the day, and certainly such articles of use- 
ful jewelry as a watch, and probably such ordinary orna- 
ments as rings and studs. 

In return for the strict liability placed upon hotel keepers, 
the law gives them a general lien on goods of the guest, 
brought into the hotel, permitting the proprietor to hold these 
articles not merely for the payment of the board bill con- 
tracted by the guest for his visit at the time the articles are 
brought to the hotel, but also for bills growing out of any 
earlier stay of the guest at the hotel. A keeper of a boarding 
house has no such liability as an inn-keeper, being held ordi- 



124 Liability in Handling Goods op Others. 

narily merely for strict attention to the needs and protection 
of the guests. The liens of the keepers of boarding houses 
and of lodging houses are generally the subject of statutory 
direction. 

COMMON CARRIERS OF GOODS. 

One who agrees to take goods from place to place for hire 
and holds himself out to all to carry certain goods between 
certain places, taking the goods into his possession, is a com- 
mon carrier of goods. The term would, therefore, ordinarily 
include railroad companies, express companies, the proprietors 
of stage lines, and of canal boats, and many other individuals 
and associations frequently met in everyday life. For the 
purposes of this book, the liability of a common carrier of 
goods may be said to be about the same as the liability of an 
inn-keeper; that is to say, he is an insurer of the safety of the 
goods intrusted to him. There are, of course, slight differences 
in the accountability in these two instances, but in the main it 
is the same. The common carrier of goods may claim as his 
excuse, an act of God, or of the common enemy, the negli- 
gence of the consignor, and, generally speaking, a levy by the 
sheriff. 

The rule that common carriers of goods are not absolved 
from care by an act of God was illustrated at the time 
of the Johnstown flood. Several cars of whisky were 
stopped by the flood and were left by the railroad company 
standing on the track near Johnstown. A number of disor- 
derly characters about the town went to these cars and, help- 
ing themselves to the whisky to the point of intoxication, 
greatly increased the confusion and danger which reigned in 
the stricken city. The respectable citizens formed a vigilance 
committee which went to the cars and spilled the contents, to 
put further temptation out of the way. An action was brought 
against the railroad company by the owners of the whisky, 
and recovery was had. For a delay in transporting the 
whisky, caused by the flood, or for a loss of the liquor in the 
waves of the flood, the company could have pleaded as an 



Liability in Handling Goods of Othees. 125 

excuse an act of God. The mere fact, however, that this 
calamity had crossed its rails, did not free the company from 
further care, and on the ground of its negligence after the 
flood the railroad was held liable. The incident also serves as 
a sufficiently good illustration of an exercise of the right of 
police power, which is referred to elsewhere. The vigilance 
committee could not be held liable for the destruction of the 
whisky, any more than fire fighters can be made responsible 
for blowing up a building in the track of a conflagration, 
where this action is necessarily taken to save other property. 
Difficult questions often arise as to when the liability of a 
transporter of goods as that of a common carrier ends, and 
when his liability as a warehouseman begins. A warehouse- 
man, we have seen, is by no means held to so strict an account- 
ability as is placed upon the common carrier, the law looking 
to the warehouseman only for ordinary care. When goods 
have reached their destination, the carrier is expected to notify 
the consignee that they are ready, and then after a reasonable 
time for the consignee to take the goods away, the liability as 
a carrier ceases and any further liability is that of the ware- 
houseman, who is storing goods for the consignee. The abso- 
lute liability of a common carrier extends only to those articles 
of which he is given full charge. It covers a bale of goods in 
a baggage car, but not a satchel carried by a passenger. 

LIABILITY LIMITED BY CONTRACT. 

As a general rule, a common carrier of goods may place 
limitations on his liability by contract. It is almost every- 
where held that he may in this manner free himself from 
damage resulting from the carelessness of others. In some 
states he is allowed to guard against the negligence of his own 
servants, or even of himself. It should be noticed that this 
contract, like any other, must be based on consideration. A 
eommon carrier is obliged to have a certain rate, varying per- 
haps according to the weight, character and frequency of ship- 
ments; but, nevertheless, a rate of which all persons may avail 
themselves and take advantage, at the same time, of the car- 



126 Liability in Handling Goods of Others. 

rier's liability; and a mere stipulation by the carrier tbat in a 
case of carriage of freight at this regular rate and in the ordi- 
nary manner, he should be free from liability for negligence, 
would not be binding, since there is no consideration for the 
contract; and a bill of lading or other paper handed to the 
consignor setting forth this stipulation would be worthless. 
If the consignor and carrier should agree that because the con- 
signor were allowed to ship at a rate lower than the usual 
charge, or because he were allowed to enjoy other special 
privileges, the carrier should be freed from a part of his lia- 
bility, such an agreement, being based on a good considera- 
tion, will be supported by the law. The courts have looked 
with great disfavor on attempts by common carriers to 
evade their old time responsibility, and construe strictly 
against the carrier the agreements referred to. 

While a common carrier may usually avail himself of the 
excuses of which we have spoken, nevertheless, if he agree by 
express contract to do a certain thing, then he must do it, and 
an act of God or of the public enemy will not avail him as an 
excuse. For example, if goods were given to a carrier at Bos- 
ton for transportation in the ordinary manner to Chicago, 
without special agreement, a flood which carried away the 
bridges on the Hudson river would no doubt be sufficient 
excuse for delay. If, however, the carrier had entered into a 
specific agreement to land those goods in Chicago five days 
after their receipt in Boston, the destruction of the bridges 
by flood would not be sufficient excuse for failure to comply 
with his contract, and for such a failure he would be liable in 
damages. 

The liability of carriers of passengers is not so great as that 
of carriers of goods; and this is reasonable, because a bale of 
goods can be thrown into a corner and will stay there, while a 
passenger is always wandering about and getting himself into 
danger. "While carriers of passengers are not insurers, still 
they are bound to use a high degree of skill to guard their 
passengers from accident. In some states there is a tendency 



Liability in Handling Goods of Otheks. 127 

to say that as to road-bed, machinery and other implements 
or methods of transportation the carrier of passengers shall be 
held to the highest care of which human prudence is capable, 
but that as to other matters the carrier is liable only for an 
ordinary degree of care. Under this rule it is evident the com- 
pany would be held to a stricter accountability for a defect 
in a wheel than for a defect in the seat on which the passenger 
sat. Even under the test requiring the highest degree of care 
of which human prudence is capable, it is evident the responsi- 
bility of the carrier of passengers still falls far short of the 
responsibility of a carrier of goods, who is an insurer. 

BAGGAGE. 

Railroad and other companies are usually liable as com- 
mon carriei'3 of goods for the baggage of passengers of which 
they are given full control; this evidently would not apply to 
hand baggage retained in the passenger's care. Baggage is all 
that is necessary while in the cars and for the ultimate needs 
of the journey. It ordinarily would include a plentiful supply 
of clothing and of such articles as are required for the passen- 
ger's business while on the road. Some years ago a Russian 
woman of high social standing, after traveling in Europe, Asia 
and Africa, came to the United States, expecting to cross the 
continent and then to go on to South America. She must 
have caused consternation among womankind in the four 
quarters of the globe, for, according to her story, she carried 
in four or five travel-stained trunks, dresses and laces which 
had cost $75,000. Her trunks were lost or destroyed, and she 
sued the railroad company for that amount.. It was held that 
for such a woman apparel of this character was needful for 
the journey, and could be brought as baggage. An unsympa- 
thetic court allowed her, however, only $10^000. 

TELEGRAMS. 

By a rather curious process of reasoning, a telegraph mes- 
sage is usually regarded by the law as a bailment. Those who 
telegraph much should read carefully the conditions found on 



128 Liability in Handling Goods of Others. 

the back of telegraph blanks, since they are usually enforced 
by the law in favor of telegraph companies. There is gen- 
erally found a provision that to guard against mistake, a mes- 
sage must be repeated; that is, telegraphed back to the orig- 
inating office for comparison ; a provision that by the payment 
of a small additional sum the message may be insured; a pro- 
vision that the liability of the company shall commence only 
when the message is received at the office of the company, 
thus freeing the company from the liability for the negligence 
of persons sent to receive messages, and the provision that a 
claim against the company must be made in writing within 
sixty days. It is generally held that the receiver of a message 
who is injured by the negligence of the company, may sue the 
company as. well as the sender. 



CHAPTER XII. 

SALES. 

Characteristics of a Sale — Classification of Sales— The Purchaser Must 
Look Out for Himself— Retention of Possession by Seller— Chattel 
Mortgages — The Passing of Title — Who Can Give Title — Warrant- 
ies — Implied Warranties — 'Measure of Damages in Warranty — The 
Remedies of a Seller for Breach — Stoppage in Transit. 

We usually buy something or sell something almost every 
day; and millions of people have bought things and sold 
things, for thousands of years. The transaction is apparently 
so simple, and one of such daily occurrence, that it is difficult 
for the ordinary man to realize that the matter of buying ar.d 
selling may involve difficult legal problems, concerning which 
volumes have been written ; and which- have often puzzled the 
brains of the most learned lawyers and judges. A simple 
illustration will serve to show how necessary it may be for an 
ordinary man to understand some of the principles which con- 
cern a sale. A woman goes to a grocery store and orders a 
pound of sugar. The grocer weighs it and does it up in a 
package, leaving it for her on the counter. While he is talk- 
ing with the woman, some one else comes along and walks 
away with the sugar. Should the woman pay for it, or should 
the loss fall upon the grocer? ~No one is going to law over a 
pound of sugar, yet the difficulty suggested involves one of the 
chief and most intricate questions in the law of sales. If the 
sugar has become the woman's, she must pay for it; if it still 
remained the property of the grocer, she would not be obliged 
to. After reading the chapter, any intelligent reader should 
be able to tell to whom the sugar belonged; and, therefore, 
which person, in the case supposed, should bear the loss. 

129 



130 Sales. 

characteristics op a sale. 
A sale is a transfer of rights of property in a thing for a 
price in money. A sale evidently differs from a barter, where 
there is no money consideration, and from a gift, where there 
is no consideration of any kind which the law considers val- 
uable, though sufficient reason for the gift may be found in 
the love or affection of the giver. A sale evidently differs 
from a bailment, which is spoken of in the last chapter, since 
in a bailment there is no transfer of the rights of property or 
title. A bailment is often in the form of a pledge, and often 
in the case of bailment there is a resulting lien. Each of these 
two latter transactions is again different from a sale, since 
there is in them no transfer of title. Of the several allied 
transactions, a mortgage most closely resembles a sale. A real 
estate mortgage, as is pointed out elsewhere, is now generally 
looked upon simply as giving the mortgagee a lien upon the 
land; a chattel mortgage is, however, a sale which is subject 
to be defeated upon the payment of the debt secured. It is 
often difficult to distinguish between a sale and a contract for 
work, labor and services in the making or preparation of arti- 
cles; for example, if a lumber dealer go to a wood yard and 
direct that so many thousand feet of timber, trimmed, cut and 
planed in a certain method, be delivered at his place at a cer- 
tain time, a question at once arises whether this arrangement 
constitutes a sale or whether it is a contract for work, labor 
and services to be performed by the owner of the lumber 
yard, in furnishing lumber. This is a distinction of consider- 
able importance, for several reasons. A question may arise, 
for example, as to whether the contract falls within that pro- 
vision of the statute of frauds which provides that a sale of 
goods for a price exceeding a small amount must be in writ- 
ing. If there were no writing in the example given and the 
lumber, in its rough state, were burned the day after the 
order was given, there might be a dispute as to where the loss 
should fall. A number of tests are used in the various states 
to determine this question; one test is to ask whether or not 



Sales. 131 

the articles were in existence at the time the contract was 
made, and if they were, there is said to have been a sale. 
Another test is that if the party has done work and labor 
which ends in something that cannot become the subject of a 
sale, an action will not lie on the theory that goods were sold, 
and the contract will be treated as one for work, labor and 
services. 

CLASSIFICATION OF SALES. 

The ordinary sale consists, of course, in an offer by one 
person to take a certain article at a certain price, and the 
acceptance of the offer by the owner of the article. It is not 
necessary that any part of the purchase price should be paid, 
nor is it necessary that the article should be delivered to com- 
plete the sale. The title passes as soon as the agreement is 
concluded. We have already referred to the provision of the 
Statute of Frauds, which sometimes requires a writing or a 
partial delivery or a part payment at the time ; and it has been 
noticed that the word "delivery" as used in this sense indicates 
both a receipt and an acceptance. The passing of the title 
may be, however, and often is, the subject of special agree- 
ment between the parties. A sale of goods on approval pro- 
vides for the passing of the title in the future and at the option 
of the purchaser. It is generally held that the title in such a 
sale passes when the buyer signifies his approval or acceptance 
to the seller, or, failing to do this, retains the goods without 
giving notice of rejection after the time fixed for their 
return, or if no such time is fixed, for a longer time than 
seems reasonable to the law. A sale with all faults ordinarily 
gives the purchaser no redress; it is held, however, that the 
words "with all faults" do not affect the other description of 
the goods. Thus, for example, where a ship was sold as "teak 
built and to be taken with all faults, but without allowance for 
any defect or error whatever," it was held on its appearing 
that the ship was not teak built, that this would have been a 
misdescription of which the purchaser could have taken 
advantage had the seller stopped with the words "all faults," 



132 Sales. 

but inasmuch as lie added the further stipulation as to defects 
or errors, the court decided that the purchaser must be bound 
by the obligation. A sale by description and sample indicates 
that the goods shall conform to the description and to the 
sample ; a sale by sample is of course a kind of sale by descrip- 
tion, the sample being employed instead of words as a means 
of communication. Sometimes a sale is made with the under- 
standing that the title shall pass at once, but that the pur- 
chaser may, after inspection, reject the goods if they do not 
conform to the contract. This is known as a sale with con- 
ditional title before inspection. 

THE PURCHASER MUST LOOK OUT FOR HIMSELF. 

This is an old rule of the law, which is frequently stated 
in the shorter Latin phrase "caveat emptor." The gist of this 
rule is that in making a purchase where no representation, is 
made by the seller, the purchaser will be held to his bargain 
although it prove disadvantageous. The rules relating to 
fraud and deception are stated elsewhere, and it is there 
pointed out that if the seller make a material false repre- 
sentation with intent to deceive and the expectation that it 
will be acted on, and this representation is acted on by the 
purchaser to his damage, there is a case of fraud. The pur- 
chaser who was misled in such a case would not be bound by 
the rule of caveat emptor. Many sales are, however, made 
without any representation on the part of the seller, and here 
the purchaser must carefully examine his goods, because the 
simple fact that he has been cheated will give him no redress. 

RETENTION OF POSSESSION BY SELLER. 

As between the parties to a sale, its validity is not at all 
affected if the seller retain possession of the articles after 
the sale is concluded. It is evident, however, that if this rule 
were held good as to third parties, the door would be opened 
broad for fraud. A business man might display a large stock 
of goods, holding them in his own name, and when his credit- 
ors came to levy upon them, set out the claim that they had 



Sales. 133 

been sold some months before the levy to another person. In 
an old English case a man claimed to have sold everything he 
had, even down to his boots, though there had been no change 
of possession; the rule was applied that as against creditors 
such a sale bore the badge of fraud. It is always the rule that 
where a sale is accompanied by a change of possession, the 
transaction is binding on creditors of the seller, unless it be 
open to attack on other grounds. It is clear also that if a 
father and son were occupying a house together, the father 
might make a valid sale of the household goods to the son, 
since, while there would be no change of possession here, yet 
the goods would thereafter be in the possession of the pur- 
chaser. In most states there are provisions of the law provid- 
ing that where one desires to sell goods but wishes still to 
retain possession of them, he may effect a sale which will be 
valid against his creditors by filing the bill of sale, or other 
evidence of the transaction, in the proper office, which is 
usually the office of the town clerk or of the clerk of the 
county. It is not necessary that there should be such filing 
when there is a change of possession. 

CHATTEL MORTGAGES. 

A chattel mortgage is commonly a sale, which may be 
defeated by the payment of the debt secured, and the law con- 
siders that the title passes to the chattel mortgagee at the time 
the sale is concluded. A chattel mortgage may be foreclosed 
in the same general method adopted for the determination of 
a real property mortgage. In almost every state there are long 
statutes relating to chattel mortgages and conditional sales, 
and these statutes are sometimes made the subject of lifelong 
study by attorneys who make a specialty of such transactions. 
It may be said here merely that there are in most states cer- 
tain requirements as to the form and execution of chattel 
mortgages and conditional sales of household property. The 
statutes are frequently enacted at the request and for the pro- 
tection of dealers who make a practice of selling on install- 
ments, and the contract is apt to provide that on failure to pay 



134 Sales. 

all installments the purchaser will lose not merely all claim to 
the article on which the payments have been made, but also 
to all or a part of the money he has paid in. These agree- 
ments are improvident at the best and should be closely scru- 
tinized by prospective purchasers. 

A frequent provision in chattel mortgages is that the mort- 
gagor may dispose of the mortgaged articles, replacing them 
with others which are to be subject to the lien of the mort- 
gage. The courts have two methods of looking upon a pro- 
vision of this kind : it is sometimes held that there is an agree- 
ment to sell in the future and not a present contract of sale. 
Other courts, however, assert that such a clause establishes the 
relation of principal and agent, and hold that the title to the 
new property, purchased with the proceeds of the old, vests 
at once in the mortgagee. Under the latter rule, if the mort- 
gagor becomes insolvent and his assignee assigns such property 
to a bona fide purchaser, the latter does not acquire title, and 
the mortgagee may claim the goods under his security. 

THE PASSING OF TITLE. 

From what has already been said, it will be seen that the 
passing of title depends largely on the intention of the parties ; 
and to determine what this intention is, certain simple tests 
are used, Among the questions asked are: are the goods in a 
deliverable condition; is anything to be done to fix the price, 
as for example, weighing and measuring; must the purchaser 
perform any condition which is to precede the passing of title 
or to be concurrent with it? 

WHO CAN GIVE TITLE. 

It is often difficult to determine whether or not a seller is 
in a position to give good title to the articles disposed of. It 
is evident that a thief cannot give the purchaser good title, 
even though the latter make the bargain in entire good faith. 
If goods are sold to be paid for on delivery, and such payment 
is not made, it is usually held that a purchaser for value from 
the first buyer obtains a good title, free from the lien of the 



Sales. 135 

purchase price. The reason of this is that the parties appar- 
ently intended the title to pass in the original transfer at the 
time the agreement was made, and the payment was simply a 
matter cf credit. The facts in a peculiar case which has 
been passed upon by the courts are as follows: Austin 
agreed with Morgan to let him have a yoke of oxen for a 
dollar a day while in use, which Morgan agreed to pay. At 
the same time it was agreed that if Morgan should deliver to 
Austin a given quantity of hemlock boards within a specified 
time, the oxen should be the property of Morgan, and that if 
he did not deliver the whole quantity, the amount delivered 
should go toward the hiring price of the oxen. Morgan 
received the oxen and did not deliver the full quantity of 
boards agreed upon as the purchase price. Morgan thereupon 
gave Dye a chattel mortgage on the oxen. The court held 
that on the facts there was no intent to pass the title in the 
oxen to Morgan, and that he took possession of them simply as 
a hirer, and that therefore Bye, who had received the chattel 
mortgage from Morgan, had no right to the oxen, and that 
they must be returned to Austin. 

WARRANTIES. 

A warranty is an altogether different thing from a guar- 
anty, although the two words sound somewhat alike. A war- 
ranty has been defined as a separate, independent, collateral 
stipulation on the part of the vendor with the vendee, for 
which the sale is the consideration, for the existence or 
truth of some fact relating to the thing sold. In other words, 
a warranty is a statement by the seller as to the quality or 
quantity of the goods sold, which if untrue, will not be suffi- 
cient to cause the contract to be set aside, but will be enough 
to give the purchaser an action for damages. If the statement 
went to the very essence of the contract, so that if it were 
untrue, the courts would allow the purchaser to treat the con- 
tract as though it had never been made, then we should call it, 
not a warranty but a condition. A guaranty is, of course, a 
promise by one man to pay money, or assume an obligation 



136 Saxes. 

on the default of the one who is primarily liable. The sale 
of a thing as an article of a particular description, is ordinarily 
held to be a warranty that it is such. An illustration would 
be the sale of cabbage seed, described as large Bristol cabbage 
seed. Words of warranty will not be construed, as a rule, to 
cover defects which are obvious to the buyer; thus it has been 
held that a warranty of soundness did not extend to a bunch 
on a horse's leg, which must have been seen by the purchaser. 
It is clear that a warranty may be in almost any terms which 
the parties choose to agree upon. The expression of opinion 
is usually not considered a warranty. A statement, for exam- 
ple, that a railroad bond was "A 'No. 1" would be deemed an 
expression of opinion rather than an assertion of a fact, and 
this may be applied to most puffing statements by the seller. 
An assertion that certain sheep would shear from three to nine 
pounds a head, is mere opinion ; but an assertion that the sheep 
are two years old is one of fact, and if it be proven that they 
were six years old at the time of the sale, an action would lie 
on the warranty. 

IMPLIED WARRANTIES. 

Generally speaking, a warranty must be expressed as a part 
of the contract, to give the purchaser a right of action. Cer- 
tain warranties, however, are implied by the law ; thus for exam- 
ple, if the seller dispose of goods in his own possession, and 
sells them as his own, there is an implied warranty that he 
has title to them. This warranty, it will be noticed, would not 
apply to the sale of goods by an auctioneer or by an executor. 
There is an implied warranty that provisions sold for imme- 
diate household consumption are wholesome. 

MEASURE OP DAMAGES IN WARRANTY. 

The general rule for measuring damages in breach of 
warranty is somewhat peculiar. For example, a man buys a 
horse for $50, under warranties, which, if they had been true, 
would have enabled him to sell the animal the next day for 
$100. As a matter of fact, the warranties are not true, and 



Sales. 137 

the purchaser sells the horse on the following day for $60. 
Now it may be said that the original purchaser is in no way 
injured, since he has paid $50 and has disposed of the horse 
at a profit of $10. Nevertheless, the law would say that the 
purchaser would be entitled to the benefit of his bargain, and, 
on proving the falsity of the warranties and the greater value 
which their truth would have given to the animal, he would 
be entitled to recover from the seller $40, representing the 
difference between the price for which the animal was sold 
and that for which it might have been sold, had the warranty 
been true. 

THE REMEDIES OF A SELLER FOR BREACH. 

"Where the purchaser refuses to accept the goods, the seller 
has several remedies. He may store the goods for the pur- 
chaser and sue for the purchase price; he may sell the goods 
as agent for the purchaser and sue for the difference between 
the price received and the purchase price. In each of these 
cases it is evident that the seller regards the title as having 
passed to the purchaser. As a third remedy, the seller may 
keep the goods as his own and sue for damages for the breach 
of the contract. In the last case the seller looks upon the 
contract as broken and considers that the title to the goods has 
remained in himself. 

STOPPAGE IN TRANSIT. 

"Where a seller bills goods to a purchaser who was solvent 
at the time of the sale, and has since that time become insol- 
vent, most states give the seller a right to stop the goods 
while they are in transit; that is to say, before they have 
reached the purchaser. It is usually held that there has been 
a delivery to the purchaser, either when they reach his hands 
or the hands of his agent, or come to a place where to put them 
in motion again there must be a fresh start; as for example, 
where they have been placed in a bonded warehouse. By 
insolvency in this connection, is usually meant inability to 
meet ordinary commercial obligations. Some states look upon 



138 Sales. 

the exercise of this right of stoppage as a revocation of the 
contract, and consider that the title to the goods returns imme- 
diately to the seller. Other states simply regard the stoppage 
as an extension of the seller's lien, and hold that if there be 
any profit in the resale of the goods after paying the purchase 
price, that profit must go to the creditors of the insolvent. 
The right of stoppage in transit is usually exercised by des- 
patching a telegram to the railroad company or carrier. The 
charges of the railroad company for the carriage of the par- 
ticular goods stopped must first be paid 



CHAPTEK XTTT. 

PROPERTY IN ANIMALS. 

Wild Animals— Tame Animals— Game Laws— Domestic Animals- 
Branding— Sales, Mortgages, Insurance — Rights and Liabilities of 
Lessors and Others — Injuries to Animals — Fright — Liability of 
Railway Companies — Liability of the Owner — Cattle on the High- 
way — Remedies for Trespasses — Liabilities for Negligence — Dis- 
eased Cattle. 

The rules of law which regulate the dominion of man over 
the animal kingdom, differ in many ways from those which 
determine his property in matter not filled with the breath 
of life. 

Animals have offspring and die. They are subject to dis- 
ease. They have character and habits to be understood. They 
are wild, tame or domestic. They are liable to conditions of 
fright and madness. They require food and shelter, and they 
may be the occasion of active harm to members of the com- 
munity. 

WILD ANIMALS. 

These are the property of the state for the benefit of all 
the people. The state may prohibit hunting them altogether. 
It may regulate killing or capturing them by game laws, or 
may provide a bounty for their slaughter. Within the pro- 
visions of these laws, wild animals, including fish and birds, 
may be killed or captured, and their flesh or bodies become 
the property of their captor. His title, however, is limited to 
his possession. If the wild animal escapes, his captor's title is 
gone. While in his possession, if the animal be of a ferocious 
nature, the captor is liable for any harm it may do, no matter 
how careful he may be, or what he may do to prevent the 
injurv. No care on his part will save him from responsibility. 

139 



140 Property in Animals. 

The fact that such an animal is on his property, gives him no 
right to it. A trespasser who captures it, may be liable for 
the trespass, but the taking of the wild animal is no part of the 
damage. Certain rights, however, spring from a partial pos- 
session of such an animal. The eggs and young of wild birds, 
while still in their nest, belong to the owner of the soil. The 
fish in an enclosed pond, especially where they have been 
propagated by artificial means, are the property of the owner 
as long as they remain within his waters. Oysters are planted 
in beds and harvested in ways much resembling any other 
crop, and not having the power of motion, are scarcely within 
the laws regulating property in living things. 

TAME ANIMALS. 

Animals naturally wild are often tamed, and in manj 
ways partake of the nature of domestic animals. Even if 
such animals escape, they remain the property of the owner as 
long as they can be said to have a habit or intention of return- 
ing to him. The carrier pigeon might fly hundreds of miles, 
and still remain the property of its owner. In the great con- 
troversy between the United States and Great Britain over 
seal fishing, one of the points at issue turned upon the habit 
of the seal to return to certain islands owned by the United 
States. This habit was not produced by any taming of the 
seals, but was part of their wild nature. It was therefor© 
decided that the owners of the islands did not retain property 
in the wandering seals. 

Bees while they are swarming away from the hives, remain 
the property of the owner as long as he can follow and iden- 
tify them, but no one owns a wild or wandering swarm after 
it has escaped beyond the owner's sight, until it is captured 
and reduced to possession. 

GAME LAWS. 

These are local regulations, differing throughout th© 
Union, and are the occasion of much litigation and prosecu- 
tion. In offenses against them, like other acts not in them- 



Property in Animals. 141 

selves wrong, but simply made punishable by statute, the 
intent of the person violating the law has nothing to do with 
the criminal nature of the act. A man cannot be guilty of lar- 
ceny, unless he intends to steal something, but he is guilty of 
violating the game laws, however innocent he may be in his 
intent, so long as the law is in fact violated by his act. 

DOMESTIC ANIMALS. 

In domestic animals the right of property is just as abso- 
lute as in the case of inanimate things. The offspring belong 
to the owner of the female, almost without exception, and 
such animals may be bought and sold, leased and mortgaged 
like any other property. The loss of possession does not in 
any way affect the ownership, and the following and reclaim- 
ing of such property, involves questions of identification, 
rather than the question of title. 

BRANDING. 

In the grazing states, where horses and cattle run at large 
over vast acreages, ownership is usually established by the 
process of branding. A brand is made by statute presumptive 
evidence of ownership, and there are regulations for the 
recording of brands in county clerks' offices like any other 
evidences of title. The entire stock of an individual may be 
transferred by proper changes in the record title, without any 
actual delivery of the cattle. This is called a "sale of mark 
and brand;" and the transaction is purely statutory. If any 
mere portion of the stock be sold, however, the animals must 
be captured and rebranded before there is any change of title. 
Driving animals away from their accustomed range, or chang- 
ing or altering their brands, are in these states statutory 
crimes. 

Road brands, as distinguished from range brands, are 
marks used to distinguish the ownership of cattle exported 
from a state, and such brands must be recorded in the county 
from which the cattle are driven and before they are removed. 



14:2 Property in Animals. 

sales, mortgages and insurance. 

Cattle may be sold, mortgaged and insured practically 
in the same manner as any other article of commerce. When 
they are sold for food the seller is bound to disclose any latent 
disease of which he may be aware, and failure to make such a 
disclosure is good ground for the rescission of the sale. 

RIGHTS AND LIABILITIES OF LESSORS AND OTHERS. 

An animal may be leased as well as any other species of 
property. It may be transported by carriers or be temporar- 
ily in the custody of hotel or stable keepers, and in many 
other ways may come temporarily into the custody of some 
person other than its owner, who is responsible for its care. 
Any person thus having the temporary care or custody of an 
animal "must return it in as good condition as when he 
received it, with due allowance for ordinary use. He is 
usually obliged to provide it with food and proper housing, 
■ and in driving, keeping, or employing it, must exercise the 
care to be expected of a reasonably prudent man. 

One who rents an animal for breeding purposes is in the 
same way called upon to exercise all proper care to prevent 
injury. Livery and stable keepers are not insurers but are 
liable for want of ordinary care and vigilance. 

Transportation companies, in the absence of special con- 
tracts, would be liable for all damages not caused by absolutely 
unavoidable accidents. But these special contracts are always 
made and are of all sorts and kinds. Such contracts, how- 
ever, cannot ordinarily relieve the company from the results 
of its own negligence or that of its employees. Its responsi- 
bility continues from the time the animals are received until 
they are unloaded from the cars, and the cars provided must 
be safe and suitable. Whether it is the duty of the carrier 
to feed and water the cattle depends upon the contract; 
but in any event suitable facilities must be provided by it 
for the feeding and watering, even if it is to be done by the 
owner. 



Peoperty in Animals. 143 

injuries to animals. 
These may be caused by accident or design. If by acci- 
dent, the injury must be the direct result of it and the accident 
must be caused by the negligence of some one if liability to 
pay damages is to arise. Dogs or other animals in the act of 
attacking human beings or each other, may be killed as a mat- 
ter of self defense ; but no man has a right to kill the animal 
of another merely because it is trespassing. 

FRIGHT. 

Where, through fright, a horse or other animal passes 
out of control temporarily and sustains or causes injury, the 
rights and liabilities resulting are a prolific source of litigation, 
and many of the legal rules are complicated and conflicting. 
The general proposition, however, is simple enough. It is 
this : Was the fright occasioned by the negligence of any one ? 
If so, was the person seeking to recover damages free from 
negligence contributing to the result? When both of these 
propositions are answered in the affirmative some one must be 
liable for the damages resulting. It often happens that a 
horse is frightened and no one to blame. The owner has a 
right to drive any reasonably manageable horse on the high- 
way. That is what the highway is for. He must meet auto- 
mobiles, bicycles, steam cars and steam rollers, unfamiliar 
objects, flags, banners, etc. Any one of these may frighten 
his horse. Was this fright caused by any want of proper care 
on the part of any one? Was the automobile run recklessly 
and with unnecessary noise and escaping steam? Was the 
steam roller in actual use, or was it left standing unused in the 
middle of the highway where it had no business to be? Was 
any unfamiliar object carelessly or unlawfully placed on the 
highway, and was this want of care on the part of some one 
directly responsible for the fright and the resulting injury? 
The questions are simple enough. Their just application to 
the facts of a particular case is often very difficult. 

LIABILITY OF RAILWAY COMPANIES. 

Cattle wandering on the railway tracks are often killed or 
injured. If the statutes of the state require the company to 



144 Property in Animals. 

maintain fences and cattle guards, the question of liability 
will usually turn on whether these requirements have been 
properly met by the railway company. The road is required 
to run its trains with due care, but as the safety of the passen- 
gers is the first consideration, it is by no means always negli- 
gent not to slow up when cattle have wandered upon the track. 

LIABILITY OP THE OWNER. 

The owner of an animal must refrain from cruelty in his 
treatment of it. To this duty the state holds him by almost 
universal statutes against cruelty to animals, and the enforce- 
ment of these salutary laws is zealously sought by the humane 
societies. 

The owner must keep his animal at home and is responsi- 
ble for its trespasses, unless owners of adjoining lands are by 
statute or agreement obliged to maintain all or a portion of 
the fences. If a portion, then the liability depends upon what 
portion the animal breaks through. This general rule, how- 
ever, is subject to a general and widespread exception through- 
out the grazing countries. There the owner of lands must 
fence out the cattle of others instead of fencing in his own. 
This is the rule in Missouri, Montana, Nebraska, Nevada, 
North Carolina, West Virginia, Washington and Texas, and 
many other states. In states where both farming and grazing 
are done the rule varies with the section. The rule, in a word, 
varies with the local conditions, and this variation is based 
upon common sense. Where the business of the country is 
grazing and the cattle roam at large over wide ranges it stands 
to reason that people who wish to reserve certain lands for 
farming must fence out the herds. On the other hand, where 
the business of the country is farming and lands are plotted 
into comparatively small individual holdings, cattle cannot 
be suffered to run at large, and the owner is held responsible 
for keeping them at home. In cities and large towns, of 
course, local ordinances may prohibit the keeping of domestic 
animals altogether or restrict the manner of keeping them. 
The sufficiency of the fence to be maintained, where fences are 



Propeety in Animals. 145 

required, is sometimes determined by statute, but is usually a 
question for the jury. 

CATTLE ON THE HIGHWAY. 

The owner of cattle driven on the highway in the lawful 
course of business is not liable when they stray upon unfenced 
property, if reasonably prompt effort to remove them and 
prevent damage is made. But no man has the right to pas- 
ture cattle on the highway, except possibly in front of his 
own premises, and if he does it, he is liable when they tres- 
pass even upon unfenced property. 

REMEDIES FOR TRESPASSES. 

Statutes prevail throughout most localities for the 
impounding of cattle found trespassing. Even in the absence 
of such laws the owner has the right to hold cattle found 
actually doing damage on his property until the damages are 
paid. This is called "distress" by the lawyers. Where the 
statutes prevail they must be strictly followed; but the remedy 
either by impounding or distress is a high-banded one, danger- 
ous to be employed except in the most aggravated cases, and 
the occasion of petty litigation, bad blood and expense. If the 
owner of the cattle is known and responsible, it is far better to 
drive off the trespassing animals, send in a bill for the dam- 
ages caused by the trespass, and sue for them if the bill is 
not paid. 

The cattle seized or impounded must be in the act of doing 
damage. One animal cannot be taken for the damage done 
by another or by the same animal on another occasion. It 
must be sent to the pound with reasonable promptness. The 
owner, if known, must be notified immediately. The statute 
generally provides for the sale of the animals and the deduc- 
tion of expenses from the proceeds if the owner refuses to 
appear or to discharge his obligations; but the statute must 
be strictly followed, and meanwhile the cattle must be fed and 
watered according to the custom of the country and the usages 
of good husbandry, or the person who took them is liable as a 
wrong doer, from the very beginning of the row. 



146 Property in Animals. 

liabilities for negligence. 

As we have seen, the man who keeps a wild beast in his 
possession is liable for any injuries it may do to human beings. 
It is probable, however, that a person entering a cage or other 
place of confinement, with full knowledge of the risk he was 
running, would have to stand the consequences of his own 
foolhardiness. In the same way where an animal of a class 
usually more gentle is known by the owner to have vicious 
and dangerous habits, he keeps the animal at his own risk. 
He is liable to everyone but a wrong doer. A watchdog is 
sometimes kept for the very purpose of attacking such wrong 
doers; but if it is vicious, the owner is liable to persons it 
bites, if they are lawfully on his premises, unless they bring 
the attack upon themselves. A bull must be kept with much 
the same care that is required in case of a wild animal or a 
ferocious dog. Goring oxen, kicking horses and the like 
must be kept in a way to preserve the public from injury on 
account of the habits of the particular animal. 

It is just here that the habits and character of a particular 
animal become important and are often the turning point of 
lawsuits. A man who leaves a skittish horse unhitched on the 
highway is careless and is liable for the damages directly 
caused by the ensuing runaway. But a man who leaves a 
gentle horse that is in the habit of standing quiet, unhitched, 
is not careless and therefore is not liable if it happens to take 
fright. 

DISEASED CATTLE. 

The sale or transportation of diseased cattle, though often 
prohibited by statute under heavy penalties, is also subject to 
the rules of negligence, and the civil liability which may arise 
depends usually upon whether the owner or transportation 
company had notice of the existence of contagious disease 
among the cattle. 

The state often provides for the destruction or removal of 
diseased animals, and the loss must fall on the owner, for 
these acts are well within the general powers of the state. 



CHAPTER XIV. 

PROPERTY IN BRAINS. 

Process of Securing a Patent — What is Patentable — Literary Prop- 
erty — Copyrights — How a Copyright is Secured — What Rights are 
Given — Liability for Infringement — Trade Marks — Registration of 
Trade Marks. 

Property may be created by brain as well as by brawn. 
The world ought to pay well for a valuable new idea; and the 
obligation, in this country, is well met by our Constitution and 
statutes. If a man has a profitable new idea, he is not obliged 
to give it to the world. He may use it, as a secret process in 
his business; and many of the most valuable and profitable 
inventions never enter the patent office. As long as the inven- 
tion remains a secret, it is the property of the inventor. He 
may assign or sell an interest in it, as in any other property. 
The courts will protect him in his secret and forbid workmen, 
employees and others who have necessarily been intrusted 
with it, from committing a breach of faith by using or employ- 
ing it in any way. There is, however, no protection to the 
inventor against the public or any portion of it which may, 
in good faith, learn of his invention and employ it; and after 
the public has thus used and employed it, the inventor's right 
is gone. Few inventions can thus be employed in secret with 
safety or profit; and, in order that men might reap the just 
reward of their new ideas, the Constitution empowered Con- 
gress to enact patent laws, which might give to an inventor 
the exclusive property in his invention for a period which 
would enable him to secure a fair return for his time, labor 
and ingenuity. 

PROCESS OF SECURING A PATENT. 

It is not within the province of this work to go into the 
intricacies of Patent Law. In a general way it may be said 

147 



148 Property in Brains. 

that any citizen, or any person who has been in the country 
one year and made oath of intention of becoming a citizen, has 
the right to apply for a patent. If his idea is still imperfect, 
and he fears that some one else may get in ahead of him, he 
may file a warning that he is at work on the invention in hand, 
and thus protect himself. The instrument so filed is called 
a "caveat" and is often a step preliminary to the taking out 
of a patent. When the invention is perfected an application 
should be filed in the patent office at Washington, which is a 
part of the Department of the Interior. The application must 
contain a full description of the invention, accompanied by 
such specifications, drawings and models as would enable any 
person, from them, to put the invention into active operation. 
After the application is filed, the commissioner of patents 
directs an examination of the patents granted, and the appli- 
cations for patents on file; and, if the new application seems 
to infringe upon anything already patented, or to be patented, 
the applicant is notified; and, in order to get his patent, he 
must avoid the difficulty either by proving that his is the 
prior invention, or by filing a paper disclaiming a desire to 
patent that portion of his invention which interferes with the 
inventions of others. 

WHAT IS PATENTABLE}. 

It is not every new idea that is patentable. One may 
patent any new art, machine, composition of matter or 
improvement, but his discovery may be of a principle of 
nature, which is the common property of mankind, and not 
the product of any one man's wits. Sir Isaac Newton discov- 
ered the law of gravitation and gave the whole world of sci- 
ence a tremendous impetus. But any man can see that no 
state could give Sir Isaac Newton a patent on the law of grav- 
itation. When Benjamin Franklin drew the lightning from 
the clouds and found it to be an electrical fluid which acted 
upon discoverable laws and could be made to do man's bid- 
ding, he helped the world along to a new era. But the world 



Property in Brains. 149 

could not reward him by giving him a patent on electricity. 
These propositions are obvious. Let us go a step further. 
Mr. Bell finds that the human voice may be made to repro- 
duce itself at a distance, along a wire, by means of electricity. 
Is this the discovery of a law of nature, common to all and 
unpatentable; or is it a patentable invention? In discussing 
this question the United States Supreme Court said, in the 
case of Dolbear against the American Bell Telephone com- 
pany: 

"In this art — or what is the same thing under the patent 
"law, this process, this way of transmitting speech — electricity 
"is employed, but electricity, left to itself, will not do what is 
"wanted. The art consists in so controlling the force as to 
"make it accomplish the purpose. It had long been believed 
"that if the vibrations of air caused by the voice in speaking 
"could be produced at a distance, by means of electricity, the 
"speech itself would be reproduced and understood. How to 
"do it was the question. Bell discovered that it could be done 
"by gradually changing the intensity of an electric current so 
"as to make it correspond to the changes in the density of the 
"air, caused by the sound of the voice. This was his art." 

It will thus be seen that it was not a gift of nature that 
was patented in the telephone, but the gifts of nature as 
employed by the wits of Mr. Bell. The patentable art or pro- 
cess must possess this distinctly human element. A machine, 
whether a new organism or mechanism, to produce a new 
effect, or a new combination of devices, is patentable as a 
machine. The composition of matter, to be patentable, must 
be a new product, not merely an old product, produced by a 
new process. In that case, one might patent the process, but 
not the product. An improvement, to be patentable, must 
be something in a new mode of doing things which makes the 
old mode better. 

In order to be patented the subject must, of course, be an 
invention. One may best tell what invention is, by telling 
what it is not. Mere mechanical skill is not invention. Excel- 
lence in workmanship is not invention. Substitution of mate- 



150 Property in Brains. 

rials or change in size or degree is not invention. Duplication, 
omission, substitution of equivalents or mere aggregation, do 
not constitute invention. A new combination without a new 
mode of operation, or using an old thing for a new purpose, 
do not make a device an invention. 

To be patented, moreover, the device must be both novel 
and useful. The utility is tested by the instrumentality of the 
device or by its beauty. If it has no use at all, or its use is 
evil, there can be no patent. Whether a device is sufficiently 
novel to be patentable is, of course, a question of fact, but the 
question is surrounded by rules so varied that they cannot be 
stated in detail. In general any prior discovery or prior public 
use will' defeat the patent. 

A patent once granted, the inventor and his assigns have 
exclusive right to its use ; and have, alone, the right to sell the 
patented article. In this they are protected by a right of 
action for damages against any person infringing the patent; 
and a right to an injunction restraining altogether the use of 
infringing articles. Such a cause of action may often involve 
thousands who have innocently purchased and used an article 
which clearly infringes some patent right. 

LITERARY PROPERTY. 

A man has not only a right of property in his new ideas, 
but the right to put them into words and tell others about 
them. A man has always had the first right to publish his lit- 
erary productions ; and any one who takes his manuscript and 
publishes it, would be liable to him. This right of first publi- 
cation extends to literary compositions, artistic productions, 
etchings, paintings, works of sculpture, engravings, photo- 
graphs and musical compositions. This, like any other prop- 
erty, may be assigned or sold. The author of a dramatic com- 
position may give another the exclusive right to perform the 
work. But if the literary or artistic work be published with- 
out taking advantage of the copyright statutes, the work is 
dedicated to the public and the individual property in it is 



Property in Brains. 151 

gone. But this publication must be free and general. The 
delivery of lectures to a limited audience, as by an instructor 
to a pupil, does not constitute publication. The recital of a 
poem, in the same way, would not be a publication of it. 

COPYRIGHTS. 

In order to protect the rights of the author and artist to 
the work of their intellect and fancy, after it had been pub- 
lished, so that the exclusive right of publication might remain 
in them for a period of sufficient length to give them a just 
reward for their labors, the copyright statutes have been 
enacted. For a long time the lack of an international copy- 
right law deprived authors and publishers in England of 
rights in this country and vice versa. It is now the custom to 
publish in both countries simultaneously, under the several 
copyright statutes of the two nations, and thus prevent the 
literary piracy formerly so common, and in 1895 an interna- 
tional copyright act took effect. The copyright statutes 
include in their protection books, maps, charts, dramatic and 
musical compositions, engravings, cuts, prints, photographs 
and their negatives, paintings, drawings, chromos, statues, and 
models or designs intended to be perfected as works of fine art. 
Under the law a printed volume is a "book," whether it be 
pages within covers or merely printed sheets. There is little 
doubt that the matter in newspapers and magazines is copy- 
rightable as a book. There can be no copyright of a mere 
stage Jance or tableau ; there must be some story told. Work 
to be entitled to protection under the copyright laws must be 
original and not harmful or indecent; and must have some 
literary or artistic value, which may be said to contribute to 
the instruction or amusement of others. The fact that the 
work bears evidence of being derived from some former pub- 
lication does not necessarily make it not original, within the 
meaning of the copyright laws. The dramatization of a novel, 
the adaptation of one play from another, the new arrangement 
of a musical composition, compilations, though the materials 



152 Property in Brains. 

used are common to all writers, are all copyrightable. By the 
weight of modern authority translations from other languages 
are subjects of copyright. 

HOW A COPYRIGHT IS SECURED. 

To secure a copyright one must mail first, the title of the 
work to the Librarian of Congress. Later he must mail two 
copies of the book or other publication to the Librarian of 
Congress, or, in case of an artistic production, photographs 
thereof. One must also give notice of the copyright by 
inscribing on some visible portion of the work either: 

"Entered according to the act of Congress in the year 

by in the office of the Librarian at Washington;" 

or as follows : "Copyrighted in the year 19 — by ." 

These directions of the statute must be substantially complied 
with, or the author or artist will fail to be protected by the 
copyright laws. 

WHAT RIGHTS ARE GIVEN. 

The statute gives the person who complies with its pro- 
visions, the sole liberty of printing, re-printing, publishing, 
completing, copying, executing, finishing and vending the 
copyrighted work. In the case of a dramatic work, the author 
has, in addition, the sole right of publicly performing it. More 
recently the sole right to dramatize a novel or translate it 
within this country has been given to authors. The copyright 
extends for a term of twenty-eight years, with a right of 
renewal after that period for twelve years longer. At the 
conclusion of the copyrighted period, the book belongs to the 
public. The protection afforded by the copyright prevents 
any copying of the work not authorized by the owner of the 
copyright, which, of course, may be sold or assigned as any 
other right of property. For the copyright to be infringed, 
there must be a copying, either in whole or in part. The mere 
fact that one work is similar to another does not infringe the 
copyright. There must be a publication of the piratical work 
to make an infringement. Public readings and recitations are 



Property in Brains. 153 

not infringements, nor was the dramatization of a novel an 
infringement until it was made so by statute. Not every 
copying is an infringement of copyright. If so much is taken 
that the value of the original is sensibly diminished, and the 
labors of the author are appropriated to another to any mate- 
rial extent, there is an infringement of the copyright. Extracts 
may be taken for the purpose of criticism and comment, or 
quotations may be made for the purpose of illustration or 
argument; but it is not, of course, legitimate to use this priv- 
ilege in such a way that the extracts could be used as a substi- 
tute for the original work. A fair abridgment of a copy- 
righted book does not constitute an infringement of its copy- 
right. It must not be such as is in any way calculated to 
supersede the original work. A mere shortening, with the 
omission of unimportant parts and a rearrangement of the rest 
is not a "fair abridgment." But an abridgment in which there 
is a substantial condensation of the original work, the making 
of which requires intellectual labor and judgment, does not 
constitute an infringement of the copyright of the original 
work. Where two works are both compilations, based upon 
common property, and neither containing much that is orig- 
inal, such as directories, maps, guide books and the like, the 
copyright, in such cases, covers the method of arrangement 
and the matter which cannot, in itself, be copied. On the 
other hand, the compiler of such a work does not acquire a 
monopoly of the subject of which the work treats. Each 
compiler must be an original investigator. One cannot sim- 
ply use the work of another and sell it as his own. The true 
test is to determine whether the author of the compilation 
claimed to be an infringement, has, in fact, used the plan, 
arrangement and illustrations of the copyrighted work as his 
own. The fact that credit is given to the author of the work 
copyrighted, or that there is a custom to copy, as in the case 
of newspapers, is no defense if a copyright has been 
infringed. 



154 Pboperti in Brains. 

liability for infringement. 
The publisher, printer and vendor of a work which is an 
infringement of copyright, are liable to the owner thereof for 
the infringement. The usual remedy is by an action in equity 
for an injunction and an accounting, which will prevent 
further sale of the pirated book and compel the defendants 
to account to the owner of the copyright, for any profits which 
they have thus wrongfully secured. Sometimes the statute 
prescribes penalties to be paid by those who infringe upon 
copyrights. The United States courts have exclusive jurisdic- 
tion of actions pertaining to the infringement of copyrights. 

TRADE-MARKS. 

A man has not only the right to the products of his brain ; 
but, if his character, enterprise or ingenuity have made his 
line of business successful and his wares marketable, he has the 
right to have any sign, emblem or name by which he has sold 
them, advertised them, and they have come to be known, pro- 
tected. Furthermore, the public has the right to rely upon 
such trade-marks, and may not be deceived into buying spuri- 
ous products or imitations through the imitation of trade- 
marks. It is upon the theory of protection to the public that 
the courts usually proceed in interpreting and applying the 
legal rules as to trade-marks. A trade-mark has been defined 
as: "A name, sign, symbol or device, used by a person, firm 
or corporation for the purpose of indicating to their custom- 
ers that the goods upon which the name or mark appears are 
made or sold by him, them, or it, or to indicate the business he, 
they, or it, conduct, or the place where the said business is 
carried on." Trade-marks may be adopted by manufacturers, 
publishers, merchants, business houses, hotels, theaters, public 
carriers. Any arbitrary words, signs or symbols, which do not 
by their usual and customary meaning imply the character 
of the goods or business they represent, may be a trade-mark; 
and, by application to a class of merchandise, may indicate its 
ownership and origin, and carry with it a guarantee of charac- 
ter and quality. As a general rule, mere letters cannot consti- 



Property in Brains. 155 

tute a trade-mark. Upon this question Judge Duer said, in 
deciding a case, where the letters a A. C. A." were claimed to 
be a trade-mark: 

"The owner of an original trade-mark has an undoubted 
"right to be protected in the exclusive use of all the marks, 
"forms or symbols that were appropriated as designating the 
"true origin or ownership of the article or fabric to which 
"they are affixed; but he has no right to an exclusive use of 
"any words, letters, figures or symbols, which have no relation 
"to the origin or ownership of the goods, but are only meant 
"to indicate their name or quality. He has no right to appro- 
priate a sign or symbol which, from the nature of the fact 
"which it is used to signify, others may employ with equal 
"truth, and, therefore, have an equal right to employ for the 
"same purpose." 

Almost any unauthorized use of a competitor's name will 
be an infringement of trade-mark. In fact, such cases most 
often arise where a competitor seeks to use a sign which will 
give him some of the benefits of a name to which another is 
justly entitled, or where two partners have parted company 
and each is seeking to hold the good will of the firm trade. 
Trade-marks can not only be infringed, but they can be fraud- 
ulently imitated, and if the imitation is merely colorable and 
tends to deceive the public it is illegal and can be stopped by 
injunction. 

REGISTRATION OF TRADE-MARKS. 

The right to a trade-mark, where it is of such a nature that 
it properly represents the character and standing of the person 
using it, exists without any statute; but, by the acts of Con- 
gress of 1876 and 1881, a national Trade-mark Law is consti- 
tuted, and regulations are made for the registration of trade- 
marks used in commerce between the states and with foreign 
countries. In 18S7 there was an international agreement 
formed for the international protection of trade-marks, in 
which all of the nations of the world joined with the exception 
of Germany, Russia, Greece, China, Japan, Austria, Turkey 
and a few South American countries and minor states. "With 
some of these the matter is. regulated by special treaties. 



CHAPTEK XV. 
FOEMS OF DOING BUSINESS. 

Partnerships — What Constitutes a Partnership — The Responsibility of 
Partners— Partnership Property— Death of a Partner — Special 
Partnerships — Corporations — Joint Stock Companies — A Compari- 
son — Commercial Trusts. 

Up to this point in our treatise, we have considered only 
such relations as a man may enter into with his fellows, either 
personally and directly or by means of servants and agents; 
but most of the business of the world is, to-day, done by means 
of fictitious or imaginary persons. The idea, as a matter of 
business convenience, has doubtless grown out of the law of 
partnership; and, though a partnership is not, in a legal 
sense, an imaginary person, to the same extent as is a corpora- 
tion or a joint stock company, still, the idea of a firm, which 
has an individuality apart from the persons who compose it, 
helps us to understand the legal notion of a corporation, which 
has a legal personality, may sue and be sued, fined, indicted, 
execute contracts, employ labor and do everything in law 
which an individual might do, without having any real indi- 
viduality whatever. In this chapter we shall attempt to give, 
briefly, some of the legal rules governing partnerships, joint 
stock companies and corporations; and to point out some of 
their more striking differences and similarities. It is scarcely 
possible for any man to do business without coming into rela- 
tions more or less close with these creatures of the law; and 
it is important for him to understand, in a general way, some- 
thing of their peculiar characteristics. 

PARTNERSHIPS. 

The simplest method of doing business, otherwise than by 
an individual, is by partnership. This is merely an association 

156 



Forms or Doing Business. 157 

of individuals for commercial purposes, and is not looked upon 
by the law as a unit. Thus, if one desires to sue a partnership, 
it is necessary to sue the individuals who make up the firm. 
Business men are apt to look upon a partnership as though it 
were an artificial person like a corporation, but this is not the 
legal view. Merchants will not only speak about going out 
to take lunch on the firm, and insist on keeping an account in 
which certain losses and expenditures are charged to the firm, 
but they will also occasionally sign the firm's name to an affi- 
davit or legal paper, or to a deed of partnership realty. It is 
of course a matter of convenience to have a firm bank account 
and a firm account on the books. There is no reason why a vis- 
iting customer should not lunch at the expense of the firm, 
and, indeed, the firm name may be signed to a note or other 
commercial instrument, but beyond such points as this, the 
firm is for all ordinary intents and purposes simply the men 
who compose it, and an affidavit signed in the firm's name is 
not worth the paper it is written on, because a partnership is 
not an artificial person which can make an affidavit or sign a 
deed. 

WHAT CONSTITUTES A PARTNERSHIP. 

The best method of entering into a partnership is by hav- 
ing articles of partnership prepared, and this work should 
always be done by a lawyer. The privileges and liabilities of 
the several members of a firm may thus be carefully defined. 
It is perhaps true, however, in the majority of small partner- 
ships, that articles are not drawn, the parties simply entering 
into business together, with some arrangement for sharing the 
profits and losses. A venture entered into in this informal 
manner constitutes a partnership just as though the business 
were based on regular articles. It will be apparent that in a 
case where no articles exist, questions will frequently arise as 
to whether a certain man employed about the place, is a part- 
ner or merely a clerk. A common test seems to be that any 
man who takes a share of the profits of the business, as profits, 



158 Foems of Doing Business. 

is a partner. An arrangement may be made with a clerk in a 
store, by which his salary shall be five per cent, of the profits, 
with the understanding that he is to have no voice in the man- 
agement of the firm; such an arrangement would amount 
merely to a method of paying a clerk's salary out of profits, 
and would not make the recipient a partner. It is quite as 
common, however, to give a young man a small interest in the 
profits, as profits, and to allow him some small authority in the 
management of the firm, though the wishes of the owner of 
only a five per cent, interest in the firm would not carry much 
weight. Still, such an individual would be a partner in the 
firm, and probably subject to the same liabilities as to outsiders 
as would attach to a man who had a ninety-five per cent, 
interest. 

An infant may be a partner, but withal a most undesirable 
one, because the partnership obligations, like the other con- 
tracts of the infant, may be avoided by him, and thus all 
responsibility thereunder could be shirked. There is no reason 
in most states why a married woman may not enter into a part- 
nership. By a secret partner is commonly meant a member 
of the firm whose name does not appear; there is no reason 
why a secret partner may not be employed about the place 
of business of the firm. A distinction is sometimes made 
between a secret partner and a dormant partner, to the effect 
that a dormant partner is not only secret but also inactive, 
therefore taking no part in the business, though sharing in the 
profits. The term retiring partner is used to describe a man 
who has been a member of a firm, and has endeavored to sever 
his connection therewith, but by reason of failure to give 
proper notice to the customers of the firm, is still regarded as 
a partner, in so far as some or all of its creditors are concerned. 

THE RESPONSIBILITY OF PARTNERS. 

Partners are under obligations to outsiders and also to each 
other. Looking first, briefly, at the responsibility of partners, 
to those dealing with the firm, it may be said in general, that 



Forms of Doing Business. 159 

each partner is liable for all the debts of the firm. This state- 
ment may be illustrated in this way: If A and B were mem- 
bers of a firm which was heavily indebted to C, C would prob- 
ably bring his action to collect the money against A and B, 
indicating in his papers that they, as partners, composed the 
firm of A and B. A judgment would be rendered against 
both, and it might then appear that while A was a man of 
property, B was insolvent. It would clearly be best for C to 
collect the whole partnership debt from A, and this he could 
do, even though A's interest in the firm happened to be 
extremely small. It is of course true that if at some subse- 
quent time B got on his feet again and acquired property, A 
would have an action against his old partner, B, to compel B 
to stand a part of the loss. This, however, would not change 
the original liability between A and C. One may readily see 
from this illustration that it is a dangerous thing to be a mem- 
ber of a partnership firm, since, if one's associates prove to be 
insolvent, the whole liabilities of the firm, running perhaps 
into many thousands of dollars, might all be cast upon the 
shoulders of the one solvent partner. 

Inasmuch as business men dealing with a partnership firm, 
are familiar with this rule that they may look to any one of 
the members for payment, it is of course important for them 
to understand at the outset of their dealings, just who com- 
pose the firm, and as a protection to those who seek this infor- 
mation, the law has made strict rules as to the liability to those 
who in any way hold themselves out as partners in a firm. 
Otherwise it would evidently be a simple matter for irrespon- 
sible men to pretend to be allied in a partnership with some 
man of good financial standing, and then when a crash came, 
show that as a matter of fact he was not actually connected 
with the firm. So the law rules that if any man allow his 
name to be used in a partnership, he will be liable as a partner 
to the creditors of that partnership, although it may be shown 
that as between himself and the other partners he was not 
looked upon as a member of the firm, and accordingly that he 



160 Forms of Doing Business. 

was under no partnership obligations to his associates in the 
business. 

A partner retiring from a firm must use great care in 
giving proper notification of this fact to all those who are 
interested. Any one contemplating such a retirement should 
consult with a lawyer and find from him just what notification 
must be given in the state where the partnership does business. 
In general, it may be stated, that it is a safe plan to notify 
directly, by mail, for example, all persons with whom the 
partnership has done business, and at the same time to adver- 
tise the change in the newspapers. It is sometimes said that 
a dormant partner on leaving a firm, need not give notice, but 
where there is no special objection to so doing, it is undoubt- 
edly better practice to take this precaution, because, while to 
most people he may be a dormant partner, yet some may have 
discovered his connection with the firm, and relied upon it in 
their dealings with the house, and those who had made this 
discovery would be in a fair way to enforce against the dor- 
mant partner debts contracted after his retirement. 

Turning now to the. obligations of partners to each other, 
it may be said, first, that each partner is a general agent for 
the others within the scope of the partnership business; and, 
second, that the relationship is one of trust and confidence. 
By saying that each partner is a general agent for the others, 
is meant that any one of the partners may bind his associates 
by any transaction taken by himself in the name of the firm, 
so long as that transaction relates in a legitimate manner to 
the business of the firm. If A and B were wholesale grocers, 
employing large sums of money in the purchase of their mer- 
chandise, it is plain that A could at any time give a partner- 
ship note for ten thousand dollars, sign the partnership name 
thereto, and take the proceeds himself. This note would be 
enforceable against the firm, although it should later appear, 
that the money, as a matter of fact, had not been applied to 
the uses of the firm, but had been squandered by A for his own 
pleasure. A is here the general agent of the firm, and m 



Forms of Doing Business. 161 

within Lis authority in contracting a loan of this kind. On 
the other hand, lawyers usually do not require any consid- 
erable amount of ready money for the transaction of their 
business, and if a member of a firm of attorneys should desire 
to give the name of the firm for ten thousand dollars, a careful 
banker to whom he applied for the loan, would naturally 
scrutinize the transaction with some suspicion, and would prob- 
ably demand that he be satisfied that the other partner knew 
of or authorized the transaction. If in this latter case it 
appeared, after the money had been loaned, that it was applied 
to the partnership purposes, no doubt the note, if signed in the 
firm name by one of the members of the firm, would be 
enforceable against the partnership. On the other hand, if it 
should appear that the money had again been squandered by 
the partner who had made the note, it is probable that the 
firm of attorneys would not be held on the note, inasmuch as 
here it was not within the scope of the partnership business for 
one member to borrow ten thousand dollars in the name of the 
firm. Each partner in the firm is entitled to object to the 
admission of any new member into the firm ; in fact, the death 
of one of the partners or the admission of a new man imme- 
diately dissolves the existing firm, and the joint business may 
then be continued only by the formation of a new firm, in 
which as many of the old partners may join as may feel 
inclined so to do. This theory is known in law as the choice 
of persons, and is of course a necessary safeguard in a business 
relationship where the responsibilities are so great. 

Partners hold towards each other a trust relationship. Two 
partners formerly conducted and managed the Hoffman 
House in !N"ew York city. The partnership, by its terms, was 
to expire on a certain day ; some time before this day one of the 
partners procured in his own name renewals of the leases 
covering the premises on which the firm conducted its hotel, 
thus apparently endeavoring to freeze out his associate. It 
appeared that the firm had spent large sums of money in mak- 
ing improvements and in fitting up the leased hotel premises, 



162 Forms op Doing Business. 

and in providing fixtures and furnishings, and that by their 
joint efforts a profitable business had been built up and the 
rental value of the premises much enhanced. It is clear that if 
one partner had been allowed to renew in his own name, he 
could have dictated to the other the terms of sale for the car- 
pets, furnishings and the like, which were specially adapted to 
that particular hotel. When the dispute came into court it 
was held that the leases renewed by the one partner must 
enure to the benefit, not of the one, but of both, since this was 
a trust relationship, and while acting as a member of the part- 
nership firm, the law would hold that the partner renewing 
the leases had done this for the benefit of both. One partner 
ordinarily may not sue another before a jury; he may, how- 
ever, demand an accounting in that branch of the court which 
has to do with the principles of equity. 

PARTNERSHIP PROPERTY. 

Partnership firms often make use of real estate for the 
purposes of business; for example, a store is used in which to 
sell goods, and this store is owned by the partners. Such real 
estate would be treated by the law just as though it were per- 
sonal property, in so far as partnership obligations are 
involved, but after that the characteristics of real property 
would return to it. It seems that members of a partnership 
firm may appropriate firm property to pay a debt, for which, 
while it is not a debt of the firm, all the partners are, never- 
theless, responsible. It seems, however, to be a fraud as 
against the creditors of the firm, to use the firm property for 
the payment of an individual indebtedness. It frequently 
happens that when a firm fails, the individual fortunes of the 
members of that firm are lost in the crash, as well as the part- 
nership property. Under such circumstances it is evident that 
there will be a lively contest between the creditors of the firm 
and the creditors of the members as individuals, to seize what- 
ever assets are available, because it will be remembered that 
individual creditors may exhaust not merely their debtor's 



Forms of Doing Business. 163 

individual moneys, but also those which he has invested in his 
firm; while, on the other hand, firm debtors may attack, not 
merely the money invested in the firm, but also the private 
estates of the several members of the firm. The rules of law 
arising under such circumstances are too complex to be stated 
in a work of this character, and a lawyer should be consulted 
when a question of this kind arises. Creditors may be 
reminded, however, that simply because a debtor has not indi- 
vidual property or because he has not firm property, they are 
not always without recourse, since if the debtor have either 
one or the other, it is possible the debt may after all be col- 
lected. 

DEATH OF A PARTNER. 

The death of a partner, as we have pointed out, works a 
dissolution of a partnership. Where the partner thus dying 
leaves no will, an administrator is never entitled to carry on 
the partnership business. Where the partner leaves a will 
containing an express direction to his executor to continue the 
business, the executor may sometimes, with safety to himself, 
keep the testator's money in the firm. This, however, is a 
dangerous proceeding on the part of the executor, frequently 
laying him open to a liability to replace from his own pocket 
moneys of the estate lost in the business. An executor, under 
such circumstances, should, therefore, act with caution, and be 
sure he is within his authority. 

SPECIAL PARTNERSHIPS. 

The statutes of most states provide for special partnerships, 
and give to the special partner freedom from liability after the 
money which he has put into the firm is exhausted. Thus if A 
were a special partner in a firm, and had invested therein ten 
thousand dollars, w T hile he might lose his ten thousand dollars, 
yet he could not be called upon by creditors to pay an addi- 
tional sum. The statutes authorizing special partnerships are 
commonly technical, and must be closely followed, otherwise 
a person intending to form a special partnership may, to his 



164 Forms of Doing Business. 

surprise, find himself held liable as a general partner. It is 
generally provided that there must be at least one general 
partner in every special partnership, so that the creditors 
may be able to look to at least one member for an unlimited 
liability. 

CORPORATIONS. 

The provisions governing the management and conduct of 
corporations are so largely the result of statute in the sev- 
eral states, that in a work of this kind only a bare outline of 
the idea of a corporation, may be given. Everywhere a cor- 
poration is looked upon by the law as an artificial person. If 
three men were partners, it would be necessary in suing the 
firm, to name each one of them in the complaint; if, on the 
other hand, they had formed a corporation, the action could be 
brought directly against that corporation, without naming any 
of the incorporators. The rules covering corporate stock are 
set forth in another chapter. It may be noted here that while 
the death or withdrawal of a partner from a firm immediately 
ends that firm, there is no such result in the case of a sale of 
corporate stock. It is of course a matter of everyday knowl- 
edge that stock in corporations is passing from hand to hand 
without any change in the constitution of the corporations 
themselves. The stockholders in a corporation have no such 
liability for debt as attaches to the members of a partnership 
firm. This liability is again entirely regulated by statute, but 
it is always limited in amount and is usually measured in some 
way by the amount of stock held by the stockholder whom 
creditors endeavor to charge with the debts of the corporation. 
Directors of corporations are frequently held liable for the 
debts of the corporation in large amounts, but this is by reason 
of certain statutes in the several states, which provide that 
such a liability shall attach where the directors have been negli- 
gent in the management of the corporation in certain ways, or 
have endeavored to defraud those dealing with the corpora- 
tion. As a corporation is an artificial person, it is created and 
destroyed by the state; men may not come together and simply 



Fobms of Doing Business. 165 

agree to form a corporation; it is always necessary to subscribe 
and file certain papers in certain offices, and an incorporation 
tax must be paid to the state in which the corporation is 
formed. Sometimes the charter provides that the corporation 
shall exist for a certain number of years ; in such a case, at the 
end of the time set, the corporation expires, somewhat as an 
individual dies from old age. In other cases a corporation is 
dissolved either because its directors and stockholders desire 
that it shall be put out of the way, or because a judgment of 
death is visited upon it by the state for its misdeeds. The 
stockholders in a corporation have little voice in the manage- 
ment, save as they control it by the election of directors. The 
directors act as the agents of the stockholders and of the 
corporation, and the corporation will be bound by what they 
do within the scope of their management. 

Most states recognize stock corporations, municipal corpo- 
rations, and corporations which fall under neither of these 
classes. Stock corporations include banks, insurance com- 
panies, railroads and ordinary business corporations. Among 
municipal corporations may be included counties, towns and 
cities. Among other corporations falling into neither one of 
these groups are religious corporations, including many 
churches and similar bodies, membership corporations, includ- 
ing some clubs and pleasure associations, and a group of corpo- 
rations which are sometimes distinguished as mixed corpora- 
tions, including libraries, cemeteries, boards of trade and the 
like. As has already been indicated, there are statutes in most 
states requiring a strict compliance by directors with regula- 
tions relating to the management of corporations. Any per- 
son serving as a director in a corporation should inform him- 
self carefully as to the statutes of this character enforced in 
his own state, as otherwise he may subject himself not merely 
to large financial loss but even to criminal liability. 

JOINT STOCK COMPANIES. 

A joint stock company is a partnership which has some of 
the incidents and powers of a corporation. Thus the members 



166 



Fobms of Doing Business. 



of a joint stock company are usually liable in about the same 
manner as partners, and the company itself is not looked upon 
by the law as an artificial person, it being formed and dis- 
solved by agreement in the same general manner followed in 
the case of partnership. On the other hand, joint stock com- 
panies are governed by their directors, and a sale of stock and 
its consequent transfer from hand to hand does not dissolve 
the company. It is usually provided that certain members 
may be designated as those against whom actions shall be 
brought. The method of doing business as a joint stock com- 
pany presents certain advantages which are appreciated by 
large concerns, especially by those who are engaged in trans- 
portation. Some of the large express companies have never 
been incorporated, preferring to do their business as joint 
stock companies. 

A COMPARISON. 

From this brief summary of the chief characteristics of the 
partnership, the corporation and the joint stock company, the 
reader may now be in a position to understand the following 
table illustrating the main similarities and differences: 



CORPORATION. 


PARTNERSHIP. 


JOINT STOCK COMPANY. 


Artificial person. 


Association of indi- 
viduals joined for 
profits. 


Partnership having some 
of the powers of a cor- 
poration. 


Corporation sued. 


Individuals sued. 


Members sued unless cer- 
tain ones designated by 
statute. 


Legal entity. 


No legal entity. 


No legal entity. 


Change of stockhold- 
ers does not affect. 


Change dissolves : 
Delectus personarum. 


Sale of stock does not 
dissolve by agreement. 


Liability fixed and 
limited by statute. 


Partners liable in full. 


Liability of shareholders 
similar to that of part- 
ners. 


Directors act. 


Partners < general 
agents within scope 
partnership business 


Governed by directors, by 
force of the original 
agreement. 


Formed and dissolved 
by the state. 


Formed and dissolved 
by agreement. 


Formed and dissolved by 
agreement. 



Forms of Doing Business. 167 

commercial trusts. 
It has become the fashion to call all great industrial com- 
binations trusts. In this there are frequently two errors; in 
the first place, the proper term is "commercial trust/' because 
the word "trust/' as used in law, has another signification. 
Secondly, although a corporation employed many millions of 
dollars in its business and had dealings in every state of the 
Union, strictly speaking, it would not be a trust, for there is a 
trust only where a number of individuals or partnerships or 
corporations, or all three together, join in an agreement for 
the purpose of combining their several businesses, under the 
managment of certain subscribers. And it is not true that 
commercial trusts are always illegal. It is generally held that 
a corporation may not enter into a partnership, and, especially, 
that any partnership agreement entered into by a corporation, 
with the idea of limiting the production, and so increasing the 
cost of, necessary commodities, would be illegal. This is again 
a question which can be simply referred to in a book of this 
character, but it may be stated that those who care to look into 
the matter further will find in the 121st volume of the reports 
of the Court of Appeals of the State of -New York, at page 
582, an illustrative case on commercial trusts, in which a cer- 
tain corporation was dissolved because it had attempted to 
enter into a partnership agreement of this kind; in this case 
are set forth at some length the papers and agreements sub- 
scribed by a number of corporations and partnerships dealing 
in sugar, with the purpose of forming a sugar trust. 



CHAPTEE XYI. 

STOCKS AND BONDS. 

Relations of the Stockholder to the Corporation — Nature of Stock — 
Watered Stock— Stock Subscriptions— Transfers of Stock— Embez- 
zlement and Theft of Stock — Wager Contracts and Margins — 
Increase and reduction of Stock — Power to Borrow Money — 
Bonds — Coupon Bonds — Mortgage Deeds of Trust — Duties of the 
Trustee. 

The capital stock of a corporation is the sum designated 
in its charter as the amount paid or to be paid by the stock- 
holders to form the capital of the company. The share- 
holders seek by becoming such to share in the profits of an 
enterprise, without subjecting themselves to the liability to 
loss, beyond the amount they see fit to invest, in the form of 
stock subscriptions. When they have paid for their stock in 
money or property to its full par value, they are subject to no 
further liability; no matter how heavily the company in which 
they are interested becomes indebted; or how large are their 
holdings of stock, unless the statutes have imposed some fur- 
ther liability; or where the charter of the corporation gives 
it some right to make assessments upon shareholders, beyond 
the par value of their holdings. The holders of stock, on the 
other hand, have no title to the property or profits of the cor- 
poration until a dividend is declared or until the corporation 
is dissolved and its property is divided. The corporation is a 
distinct legal personality, acting through its directors, and its 
stockholders are not factors in that individuality. Even if 
one person own all of the stock in a corporation, it still has, 
in the eye of the law, a personality entirely apart from him. 

RELATIONS OP THE STOCKHOLDER TO THE CORPORATION. 

It therefore follows that the corporation may contract 
with its stockholders, sue them and be sued by them. They 

168 



Stocks and Bonds. 169 

are not its agents by the mere force of being holders of its 
stock; and no act of theirs will bind the corporation, unless 
authorized or empowered to be done by the board of direct- 
ors. Stockholders collectively, when attending a meeting of 
the stockholders, participate in the election of officers and 
directors, make by-laws, authorize changes in the charter or 
the increase or reduction of capital stock. But it is the direct- 
ors of the corporation and not its stockholders who manage its 
affairs, form and execute its contracts, employ its agents and 
servants, bring and defend its lawsuits, and attend to all of 
the details of its business. 

NATURE OF STOCK. 

Stock is personal property and is taxable and subject to 
levy and sale on execution. A certificate of stock is not the 
stock itself; but the evidence of it. The certificate bears the 
same relation to the stock as a title deed does to the real 
estate which it represents, or a relation similar thereto. Pre- 
ferred stock entitles the holder to dividends before or in 
preference to the rest of the stock; common stock entitles the 
holder only to a pro rata share of dividends, without any 
preference over stock of another class. Over-issued stock is 
stock issued in excess of the amount limited by the charter 
or certificate of incorporation, and is void. The certificate is 
usually a blank form, filled in by the officers of the corpora- 
tion; is usually lithographed with precautions against forg- 
ery, and is more or less imposing in appearance. It is taken, 
when issued, from a certificate book with corresponding 
"stubs." A transfer book is usually kept, in which transfers 
of stock are recorded; and a "stock ledger" which shows the 
amount of the stock holdings of each proprietor. 

WATERED STOCK. 

If a subscriber for stock pays the company full face value 
when he takes it, he may usually put his certificate in his 
safe and await his dividends without much further worry. 
But it quite often happens that he only pays a portion of the 



170 Stocks and Bonds. 

face value; or that he pays for his stock in labor or in prop- 
erty turned in at an over-valuation. His stock may also come 
to him in the form of a "stock dividend." All of these trans- 
actions have been fruitful of litigation. Stock issued ille- 
gally for money, property, or as a stock dividend, is called 
"watered stock." All stock which has been issued as paid 
up, but whose full par value has not been paid in money or 
its equivalent, is watered to the extent that the par value 
exceeds the value paid. Where the transaction amounts to 
a fraud in its results, it is illegal. The serious question is, 
who can complain of it? The corporation which issues it 
cannot seek to collect the par value from those who have 
received it; nor could the stockholders, who have partici- 
pated, be heard to complain. Dissenting stockholders who 
act promptly, might have the right to set the transaction 
aside. Creditors are usually the ones who complain and who 
usually have the best right. They generally look to the 
capital stock as representing the credit of the corporation, 
though over-capitalization has become so general that the 
nominal capital seldom means much. As a general thing, 
when stock was issued as paid up at the very formation of 
the company and little or nothing was in fact paid for it, the 
creditors can make the stockholders settle for the stock at its 
full value; but the case is different where the stock is sold 
some time after the company has become a "going concern." 
"When such a company needs money, it has the right to sell 
its stock on the market for what it can get for it, and may 
even give stock as a "bonus" to purchasers of bonds. The 
matter is in some states regulated by statute. 

STOCK SUBSCRIPTIONS. 

Stock issued as paid up when not actually paid up is one 
thing; stock for which the par value has been subscribed and 
nothing, or only a part of the subscription paid, is quite 
another. Subscriptions to stock may be verbal or in writing. 
They are usually made before the corporation is formed, or 



Stocks and Bonds. 171 

at least, before the stock is issued. Any person competent to 
make any other contract may subscribe for stock, except a 
corporation. Municipal corporations are often empowered 
to subscribe for stock by the legislature. It would otherwise 
be beyond their powers. A person who has subscribed for 
stock may compel its delivery to him by the corporation, and 
the corporation may compel him to pay for it. In default of 
such payment, the stock may be declared forfeited and sold. 
The unpaid subscriptions can also be reached by creditors of 
the corporation, who have first secured judgment against the 
concern and had their executions returned unsatisfied. In 
such event it is no defense that some other subscriptions 
remain unpaid. Each subscriber is liable to the full amount 
of his subscription, without reference to the others. Trus- 
tees and persons holding stock in pledge are liable for the 
unpaid amount of subscriptions. Executors and administrat- 
ors are not personally, liable, as the funds come out of the 
estate, unless they have paid the estate all away to legatees 
and reserved nothing to meet the stock subscriptions. An 
agent who subscribes in his own name is liable, and his prin- 
cipal is liable also. Agents, trustees, and persons holding 
stock in pledge, who have been compelled to pay subscrip- 
tions, can collect back what they have been compelled to pay 
from their respective principals. Where the subscription has 
been made in a fictitious name, or in the name of some irre- 
sponsible person which is used to protect the real person in 
interest, the subterfuge is of no avail, and the real party 
in interest has to pay the subscription. 

TRANSFERS OF STOCK. 

rTo transfer of stock is complete until it has been entered 
upon the books of the corporation. When this is done, the 
seller is absolutely relieved from all liability upon an unpaid 
subscription, and the buyer becomes liable in his place. Until 
it is done the liability of the original owner remains, although 
he has parted with his stock; and he will have to look to the 



172 Stocks and Bonds. 

one who bought it to reimburse him afterwards. If, how- 
ever, the corporation recognizes the purchaser by paying him 
dividends, and the failure to transfer is due to its negligence, 
the seller is relieved. But, although the transfer is not com- 
plete until entered upon the books, the actual change in 
ownership is often effected merely by a change in the pos- 
session of the certificates, indorsed by the owner, and some- 
times accompanied by a power of attorney to transfer the 
stock on the books of the corporation. The sale itself con- 
sists of the offer to sell and its acceptance, which must, how- 
ever, be accompanied by a memorandum or note of the trans- 
action in writing, or part payment. The law implies an 
agreement that the contract will be performed by the deliv- 
ery of the certificate within a reasonable time, and either 
party may enforce it. All this will be more easily under- 
stood when it is remembered that the certificate of stock is 
not the stock itself; but merely evidence of the title of its 
holder to a certain share in the profits of the corporation. 
Where there has been a failure on the part of the buyer to 
pay for what he has bought, the seller may sell the stock on 
due notice and sue for the difference in the value between 
what it brings and what was agreed to be paid for it ; or he 
may retain the stock and sue for the difference between the 
contract and the market price; or he may tender the stock 
and sue for its value. The buyer, if the seller fail to deliver 
the certificate as agreed, may sue him for damages. 

EMBEZZLEMENT AND THEFT OF STOCK. 

Where stock has been sold by a trustee who holds it for 
another's benefit, he cannot profit by the bargain. He is 
liable either for what was paid him or for the market value 
of the stock. Purchasers from the trustee, who has appro- 
priated the proceeds of the sale to his own use, or failed to 
account for them, are liable to the true owner only when 
they had notice of the trust or knowledge of facts which 
should have put a prudent man on inquiry. In the same way 



Stocks and Bonds. 173 

a corporation which has notice of the trust nature of the stock 
holding, is liable for permitting a fraudulent transfer of the 
stock on its books. Guardians, generally, and executors and 
administrators, may sell stock in the due course of their 
administration of the estate. In the case of stolen stock, 
even when indorsed in blank by the owner, the purchaser 
from the thief gets no title; but if the thief or his purchaser 
has had a transfer made on the books of the corporation and 
a new certificate issued, the purchaser in good faith is pro- 
tected. It is the custom for corporations to demand the sur- 
render of the old certificate when the new one on the transfer 
of ownership is issued, and if they fail to do so, they are 
liable to the innocent holder of the old certificate. For this 
reason, holders of certificates who have lost them cannot get 
new ones unless they give the corporation security against 
any liability that may accrue to an innocent holder of the 
outstanding certificate. In one case a corporation was held 
liable where an old certificate had been outstanding for sev- 
enteen years and finally turned up in the hands of an inno- 
cent holder. 

WAGER CONTRACTS AND MARGINS 

A large part of stock transactions on the exchanges and 
through the "bucket shops" are mere wagers. There is no 
intention to deliver stock bought or sold for future delivery; 
but the purpose is simply to pay the amount lost or won by 
the rise or fall of the market price. All of these transac- 
tions are strictly illegal, as gambling; but as their illegality 
consists in the intention of the parties not to deliver the 
stock, and as the intention of the parties is purely a question 
of evidence, there is great practical difficulty in preventing 
these transactions, and in actual business life they are seldom 
set aside. The gaming features of stock transactions are 
facilitated by the universal custom of the purchase and sale 
of stock on margins, through the instrumentality of brokers. 
The customer deposits with the broker a sum of money as 



174 Stocks and Bonds. 

security equal to but a small part of the value of the stocks, 
accompanied by an order to purchase or sell. If the order is 
to buy, the broker buys and keeps the stock and the money 
deposited as security. If it is to sell, the broker borrows the 
stock and delivers it to the purchaser, still keeping the mar- 
gin as security. The losing customer loses the whole or a part 
of his margin; the winning customer gets his margin back 
with the profits, less the broker's commissions. Unless there 
is proof of an actual intention not to deliver the stock, these 
transactions are legal. If the margin becomes exhausted 
through the fall of the stock, if bought, or its rise, if sold, the 
broker must close the transaction, if he is originally ordered 
to do so when the margin is deposited. In the absence of 
such an order, the broker must notify his customer that the 
margin is exhausted and that in case the margin is not made 
good, the transaction will be closed and the customer held 
liable for the loss. Brokers often require their customers to 
sign a waiver of this right to such notice, and such waivers 
are legal. For the unauthorized sale of stock held on margin 
the customer has ample legal remedies against his broker. 

INCREASE AND REDUCTION OF STOCK. 

A corporation cannot increase or reduce its capital stock 
in the absence of legislative authority, but such authority may 
be given, even if some of the stockholders object. The legis- 
lature, however, would have no constitutional right to author- 
ize the reduction of capital stock to the detriment of credit- 
ors. The corporation, when authorized, may effect the reduc- 
tion by buying in its own stock; but in the absence of such 
authority, the buying in of its own stock by the corporation 
will not effect a reduction, and it can reissue and sell it at 
any time. Where new stock is authorized and issued, the old 
stockholders have the first right to buy it, to the proportion- 
ate amount of their holdings; but this does not extend to 
old stock bought in and reissued. Not only is it illegal for a 
corporation to increase or reduce its capital stock without 



Stocks and Bonds. 175 

authority from the legislature; it cannot change the number 
of shares or their par value without such permission. Though 
over-issued stock is void, its purchasers can recover what they 
paid for it from the corporation that issued it wrongfully, or 
from the officers participating in the fraud. In the same 
way, they can recover for forged stock where the crime has 
been perpetrated by persons holding an official position in 
the corporation, who were by that position enabled to make 
the forgery effective. Stock can be mortgaged or pledged 
as collateral, and then the legal relations of pledgee and 
mortgagee arise and are subject to the usual legal rules in 
such cases. 

POWER TO BORROW MONEY. 

A corporation has implied power to borrow money, and 
even where this power is restricted by its charter, loans made 
in excess of the amount specified, after they have been 
actually made, give the lenders a valid claim against the 
corporation. It has implied power to issue notes and draw 
drafts and bills of exchange, but it cannot become an accom- 
modation indorser. A corporation has inherent power to 
issue bonds, and this is the course usually taken when it is 
desired to raise money to any very large amount. 

BONDS. 

These may be secured by a mortgage or may be simply an 
unsecured obligation of the company. They may be issued 
at less than par, for cash, or for property or construction 
work, even where the latter is much over-valued. Such trans- 
actions are sometimes open to the taint of usury, and ques- 
tions of usury and such as arise when the directors of a cor- 
poration directly or indirectly secure an unfair advantage 
through a bond issue, have proved fruitful of litigation. In 
a general way, it may be said that the holder of a bond 
bought in good faith and for value, is almost always pro- 
tected, even though he made his purchase of a thief. In this 



176 Stocks and Bonds. 

respect, bonds differ from stock, as they generally have the 
characteristic of negotiable instruments. 

COUPON BONDS. 

These are ordinary bonds with detachable coupons which 
represent the annual or semi-annual interest on the bonds. 
The coupons are usually in the form of promissory notes of 
the corporation for the amount of interest due at the partic- 
ular date when they are to be detached, and when the cou- 
pons mature they become legal causes of action against the 
corporation issuing the bonds, for their face value. 

MORTGAGE DEEDS OF TRUST. 

A corporation may mortgage its property just as may any 
individual, with the exception of railroad corporations. The 
latter mortgages must be specially authorized by the legisla- 
ture to be effective and have many incidents peculiar to 
themselves, in view of the public nature of the property 
mortgaged. It often happens that an amount of money is 
desired to be raised quite too large for any one person to 
lend. This it is desired to get by the issuance of bonds, 
which may pass from hand to hand and form a species of 
property. But to make the bonds of much value in the mar- 
ket, they must be secured by a mortgage upon the property 
of the corporation. This mortgage cannot very well be made 
directly to the bondholders. They are numerous and their 
personnel is continually changing. It is the custom, there- 
fore, for the corporation issuing them to secure the bond- 
holders by a mortgage deed of trust to some one person op 
corporation, who shall represent the bondholders and look 
after their interests. In this way all of the bondholders can 
share in the security, in proportion to their holdings, and the 
bonds can be bought and sold without impairing their value 
or losing their quality of secured obligations. 

DUTIES OP THE TRUSTEE. 

The value of the bondholders' security, therefore, often 
depends upon the abilities and good faith of some person or 



Stocks and Bonds. 177 

corporation of whom, often, they have never seen or heard. 
The law, therefore, holds the trustee to the most rigid rules 
of fidelity and good faith. He must see that the property is 
not wasted or destroyed. He has no power to release any of 
the property covered by the mortgage except upon express 
authority from the bondholders. In the absence of fraud 
the bondholders are bound by his acts within the scope of his 
authority. The trustee is the only one who has any standing 
in court against the corporation issuing the mortgage bonds; 
and if any foreclosure is brought, it must be by him and in 
his name. The bondholders who are dissatisfied with his 
discharge of his duties, may bring legal proceedings to compel 
him properly to perform them; or to remove him and have 
a more satisfactory trustee appointed. 



CHAPTEK XVII. 

CHECKS AND PROMISSORY NOTES. 

Commercial Paper — Negotiable Paper — Bona Fide Holders — Bills of 
Exchange— Notes — Checks — Certification of Checks — Indorsement — 
Transfers— Real Defenses— Presentment and Protest— Accommo- 
dation Paper. 

The rules of law governing commercial paper of all 
descriptions arose out of the customs prevailing among mer- 
chants, which came into existence, and were fairly well estab- 
lished, before the courts had undertaken, to any great extent, 
to deal with them. ~No man would, ordinarily, incur liability 
by writing his name on the back of an ordinary contract, 
while his name, on the back of commercial paper, might 
result in his being obliged to pay thousands of dollars. It, 
therefore, becomes important to understand just what written 
contracts are commercial paper, in the sense that signing them 
or indorsing them involves any such liability. As with almost 
every other topic here treated, volumes have been written on 
the subject of this chapter alone; statutes have been enacted, 
which attempt to regulate the entire field, and states of fact 
are continually arising which, in one important respect or 
another, seem to differ from any that have arisen before. A 
man who takes a note generally supposes that it is as good as 
money, provided the person or persons who have signed it 
are responsible. This may depend very largely on the ques- 
tion whether the note were of the character known in law 
as "negotiable" and whether or not the time set for its pay- 
ment has arrived. We shall, therefore, undertake, in the first 
place, to understand what commercial paper is and what is not 
"negotiable." 

178 



Checks and Pbomissory Notes. 179 

commercial paper. 

Checks and promissory notes are the more common forms 
of the class of obligations known by the law as negotiable 
paper. Promissory notes, as we shall see, are not always 
negotiable. The chief importance of negotiable paper lies 
in the fact that it is practically a substitute for money. The 
amount of currency in use would not begin to be enough to 
meet the demands of the business world, and merchants have 
seized upon the simple expedient of negotiable paper for 
multiplying many times the volume of the medium of 
exchange. 

It may be said that paper is negotiable when it con- 
sists of an unconditional written promise (or an uncon- 
ditional written order upon one person by another) for the 
payment to order or bearer of a sum of money at a specified 
time, absolutely and at all events. It will be readily seen 
that many obligations which to the casual observer seem 
negotiable, do not comply with all these requirements. A 
note in this form is negotiable: "Chicago, 111., March 1st, 
1902. Ten days after date, I promise to pay to the order of 
John Jones, five hundred dollars at the First National Bank. 
Value received. Thomas Smith." Here are some examples 
of similar paper, which, nevertheless, is not negotiable, leav- 
ing off in each instance the date, the place of payment and 
the signature, which we may suppose to be the same as in the 
note already given: "Thirty days after date, I promise to pay 
to John Jones, five hundred dollars. 7 ' This note is not nego- 
tiable, because it does not contain either the phrase "to the 
order of" or the word "bearer." "Thirty days after date, I 
promise to pay to the order of John Jones, thirty barrels of 
apples." This obligation is not negotiable, because it is not a 
promise to pay money. "Thirty days after the completion of 
my brick house, I promise to pay to the order of John Jones, 
five hundred dollars." This note is not negotiable, because 
it is not a promise to pay absolutely and at all events, inas- 
much as the house referred to may never be completed, and 



180 Checks and Promissory Notes. 

so the money never come due. A promise by the maker of a 
note to pay thirty days after his own death, would probably 
be held to be a promise to pay absolutely and at all events, 
since we all must die. It is important to distinguish between 
negotiable paper and these other forms which resemble it, 
but, nevertheless, lack some quality of negotiability, because 
these other kinds of paper, sometimes grouped under the 
name of assignable paper, do not have the qualities which 
enable negotiable paper to serve as a substitute for money. 

ASSIGNABLE PAPER. 

This difference may be illustrated by an example: Sup- 
pose that John Smith signed and delivered to John Jones 
the following note: "New York, March 1st, 1902. Thirty 
days after date, I promise to pay to John Jones, five hun- 
dred dollars, at the First National Bank." This note, it will 
be noticed, is not negotiable, but merely assignable, because 
the words "order" or "bearer" do not appear. Suppose now, 
that Jones passed on the note in the regular way to a third 
party, and the third party desired to collect on it from the 
maker. Inasmuch as the note is only assignable, this third 
party should, immediately upon its receipt, give notice to 
the maker of the note of the transfer; this is for the purpose 
of securing the payment to the third party and preventing 
payment to Jones; because it would not be essential that the 
note should be presented when it was paid, and so it might 
happen that the maker would pay the money to Jones after 
the latter had transferred the note to the third party; then 
the third party might be without recourse against the maker 
of the note. Notice of the assignment would not be abso- 
lutely necessary here, because it might well happen that the 
third party would present the note for payment before any 
demand for payment was made by Jones, and if Jones were 
an honest man, notice of the assignment to the maker would, 
of course, be an unnecessary precaution. In the second 
place, the third party, who had thus taken the assignable 



Checks and Promissory Notes. 181 

paper, would be obliged to show, if it were necessary for him 
to bring an action against the maker on the paper, that there 
had been consideration for the original transaction between 
the maker and Jones. In the third place, the third party 
would seem to stand in the shoes of the man who had 
assigned the note to him; that is to say, if it were necessary 
for this third party to commence an action against the 
maker of the note, the latter could assert against the third 
party any defense which he might raise against the person to 
whom the note was originally delivered. The position of the 
third party would be exactly the position occupied by Jones, 
no better and no worse. Thus it might happen that although 
the third party had paid well for the note and had taken it 
without knowledge of any defect, yet because it was only 
assignable paper, he might be confronted on the trial with 
some equity or right existing between the maker and Jones, 
as, for example, that there had been fraud on the part of 
Jones in obtaining the note from the maker, and such a 
defense as this, if properly supported by proof, would defeat 
the right of the third party to recover. 

NEGOTIABLE PAPER. 

Now, suppose that the note, instead of being in the form 
indicated, was written in this manner: "New York, March. 
1st, 1902. Thirty days after date, I promise to pay to the 
order of John Jones, five hundred dollars, at the First 
National Bank." This note, it will be noticed, has all the 
requirements demanded by the law for a negotiable promis- 
sory note. Next, assume that this negotiable note be trans- 
ferred to the third party in the regular manner by indorse- 
ment. It will not be necessary now for the third party to 
give notice to the maker of this transfer, before the note is 
presented for payment, because a maker of negotiable paper 
may not pay it with safety until the paper itself is presented. 
If the payee of the note, Jones, were to go to the maker in 
this case, and ask payment of the note, the maker could and 



182 Checks and Pbomissoby Notes. 

would refuse to pay, unless the note were produced. In the 
second place, the third party, if compelled to bring an action 
against the maker of this negotiable promissory note, would 
not be expected to show that there was a consideration 
between Jones and the maker when the note was originally 
written and delivered, because the law would here presume 
that there had been such a consideration. In the third place, 
the third party would not stand in the shoes of the man who 
had transferred the note to him, because his position might, 
as a matter of fact, be much better than the position of the 
man of whom he had the note. This last rule may be illus- 
trated in this way. If before the note became due, the third 
party took it in the ordinary course of business, giving for it 
what the law deemed to be a proper consideration, and with- 
out notice of any defects attaching to the note, the third 
party might then enforce the note against the maker, 
although the maker had a perfectly valid defense against 
Jones, the payee. The law under these circumstances would 
call the third party a bona fide holder for value and ordi- 
narily would not allow his title to be disturbed by claims 
existing between the maker and the payee, of which the bona 
fide holder had no notice. 

We said at the opening of the chapter that negotiable 
paper was a substitute for money. Now we are able to see 
that, while negotiable paper is a medium of exchange, yet it 
is not by any means the same thing as money, because it is 
only in the sense shown by the recent illustrations that nego- 
tiable paper is money. Enough has been said, however, to 
make it plain that negotiable paper is much better and much 
more easily enforceable than is the paper known as assign- 
able, which lacks some of the qualities of negotiability. 

BONA FIDE HOLDERS. 

It is only when in the hands of those persons whom the 
law designates as bona fide holders, that negotiable paper 
thus resembles money. If A make a negotiable promissory 



Checks and Promissoby Notes. 183 

note to the order of B, and deliver the paper to B, the fact 
that the paper is negotiable does not give B any special 
privileges. A may assert against B any defense which would 
he available in an ordinary bargain which had not been 
reduced to writing; he could allege fraud at the time of the 
transaction, a failure on the part of B to give consid- 
eration for the note, or many other reasons why B should 
not enforce the note. The moment, however, that B indorses 
and transfers the note to C, the bona fide holder for value, 
all this changes, and C may then ordinarily enforce the note 
without reference to these claims existing between A and B. 
Up to this point in the discussion of negotiable paper the 
rules stated are probably of general application. In several 
states, however, there are recent statutes regulating the law 
of negotiable paper, and in many others there are wide 
divergencies in this branch of the law, as laid down by the 
courts. Thus, for example, it is generally held that a person 
is a bona fide holder for value, who takes the paper in due 
course before maturity without notice of defects, and gives 
therefor a present consideration; that is to say, hands over 
some money or property at the time he takes the negotiable 
paper. In some states, however, it is decided that a man will 
be looked upon as a bona fide holder for value, who takes in 
good faith, in due course and before maturity, and who, giv- 
ing no new consideration, accepts the paper in payment of 
an indebtedness which already exists between himself and 
the person from whom the paper is taken. 

BILLS OP EXCHANGE. 

A common form of negotiable paper among commercial 
men is the bill of exchange, or draft. This may be defined 
as an unconditional written order upon one person by 
another for the payment to order or bearer of a sum of 
money at a specified time, absolutely and at all events. An 
example of a bill of exchange follows: "Philadelphia, Pa., 
March 1st, 1902. Thirty days after date pay to the order of 



184 Checks and Promissory Notes. 

John Jones, five hundred dollars, value received, and charge 
the same to John Smith. John Smith. To Henry White and 
Company, E"ew York, !N". Y." It would be necessary for 
Henry White and Company to accept this draft, inasmuch as 
they might not have that amount of money to the credit of 
John Smith, or might not care to grant him credit to that ex- 
tent. This acceptance would usually be written or stamped 
across the face of the draft, unless the draft were paid at the 
same time it was accepted. Many years ago when the difficulty 
of communication between countries was much greater than 
it is now, a custom arose which still exists, to write bills of 
exchange drawn in one country and payable in another, in 
sets of three or four parts, each a counterpart of the other, 
except that in each bill is incorporated a condition that that 
bill is to be paid only in case the other bills of the series 
remain unpaid. It is well settled that the payment of one of 
these bills in a set operates as a discharge of the rest, all 
together being looked upon by the law as simply one bill. 
Those who are not engaged in business seldom meet with 
these commercial bills of exchange, but many persons are 
familiar with the ordinary bank draft on New York or Chi- 
cago, which is simply a bill of exchange drawn by one bank 
upon another. 

NOTES. 

The form of the negotiable promissory note is so familiar 
to all persons who have any business dealings, that it scarcely 
needs to be indicated here. A negotiable note may be defined 
as an unconditional promise, in writing, to pay absolutely and 
at all events, a certain sum of money, either to bearer or to 
the order of a person therein designated. It will be seen that 
the definition of a negotiable note closely resembles that of a 
negotiable bill of exchange, both, of course, embodying the 
elements of negotiability. The parties to a note are desig- 
nated as the maker, or person who signs and makes the prom- 
ise; the payee, or person in whose favor the promise con- 



Checks and Promissory Kotes. 185 

tained in the note is made; the holder, or person who has pos- 
session of the instrument under such circumstances that he 
may recover the amount represented thereby; the indorser, 
or person who, by a writing on the back of the note, directs 
the amount to be paid ; the indorsee, or person who takes title 
to the instrument from the specified writing on the back of 
the note. Sometimes this writing, as we shall have occasion 
to see, is a full direction as to what is to be done with the 
proceeds of a note; more often it is simply a signature. 

CHECKS. 

A check is a draft or order on a bank or banker, purport- 
ing to be drawn on a deposit of funds, for the payment at all 
events of a certain sum of money to the person therein 
named, or order, or bearer, and payable on demand. Thus it 
will be seen that a check resembles a bill of exchange, except 
that it is always drawn on a bank or banker. It will be 
further noticed that a check implies a deposit in the bank on 
which it is drawn, or at least credit with that bank to the 
amount of the check, and it is often held to be a misde- 
meanor to give a check on a bank in which one has neither 
the requisite amount of money nor a credit to that sum. 

CERTIFICATION OP CHECKS. 

When one receives a check, concerning the validity of 
which there is question, it is customary to send that check 
to the bank on which it is drawn, for certification. This 
certification takes the form of a statement, written across 
the face of the check by the bank, guaranteeing certain 
things as to the check. The form of certification varies some- 
what, but is usually brief, commonly not exceeding in length 
four of five words. It is often supposed that by the certifi- 
cation of a check, a bank promises absolutely to pay the sum 
of money called for. This is erroneous. The undertaking 
of the bank is usually that the signature of a check is genu- 
ine; that the person signing has in that bank a sum to his 
credit as large as the sum called for by the check; and that 



186 Checks and Promissory Notes. 

an amount sufficient to make the check good will be retained 
in the bank for that purpose until the check is presented. It 
will be noticed that a bank in certifying a check ordinarily 
does not guarantee the genuineness of the body of the check, 
and for this reason the certified checks of responsible per- 
sons are occasionally uncollectible. Suppose a stranger 
obtained a check for twenty dollars from a responsible firm, 
properly signed by the firm, and then raised the check over 
the firm's signature to two thousand dollars, and also 
changed the name of the payee, substituting the name of a 
business man in the same city to whom the firm signing the 
check was well known. The stranger might then present the 
forged check to the payee whose name had been substituted, 
and the latter, after having the check certified, might, in 
entire good faith, part with a large amount of property in 
return for the check. Nevertheless, if the fraud were later 
discovered, the merchant to whom the check had been given 
could not collect two thousand dollars from the bank account 
of the firm or from the certifying bank; because the bank 
had simply certified that the signature was genuine, as it 
undoubtedly was, and that the bank would retain two thou- 
sand dollars until the obligations of the firm on the check 
were settled. This would not compel the bank, however, to 
pay out two thousand dollars on a check which was clearly 
proven to be a forgery in everything but the signature. 

INDORSEMENT. 

An indorsement may be said to be the writing of the 
name of the holder on the instrument, with an intent either 
to transfer the title to the same or to strengthen the secur- 
ity of the holder, by assuming a contingent liability for its 
future payment, or both. In strict speech, the term indorse- 
ment applies only to negotiable paper. The indorsement, as 
the derivation of the word implies, is usually on the back of 
the instrument. If the instrument become filled with indorse- 
ments, the holder may put on the paper a slip for his own 



Checks and Promissory Notes. 187 

and subsequent indorsements, called an allonge. Any form 
of words accompanied by a signature from which the intent 
of the indorser may be gathered, is a sufficient indorsement. 
A signature for an indorsement is usually made in the com- 
mon form, but an emblem of that signature is sufficient. An 
indorsement in blank consists in merely writing the name of 
the indorser upon the back of the instrument, and indicates 
that the instrument is to be paid to whatever person may 
hold it; there may be successive indorsements in blank. An 
indorsement in full indicates that only the indorsee can 
demand its payment. If a note were made payable to 
Thomas White, and he wrote across the back of it, "Pay to 
the order of Henry Brown," and signed this direction 
"Thomas White," this would be an indorsement in full. 
Such an indorsee, of course, could, by proper direction, 
arrange for the payment of the note to some person other 
than himself. An indorsement without recourse indicates 
that the indorser does not hold himself liable to indemnify 
the holder upon the dishonor of the note or bill. This 
indorsement is usually made by accompanying the signature 
with the words "without recourse." A conditional indorse- 
ment indicates that the title to the instrument is not to pass 
until the condition mentioned in the indorsement is fulfilled. 
The following may serve as an illustration of a conditional 
indorsement: "I indorse the within note for the benefit of 
Mrs. Hutson, in the purchase of a tract of land from Gov. 
H. Johnson." It was held that where the condition with 
which the indorser clogged his indorsement, was not per- 
formed, the person to whom the note came, through some 
other transaction, would not be entitled to collect upon it. 
An indorsement is complete only upon delivery. 

TRANSFERS. 

Negotiable paper may be transferred by methods other 
than indorsement, though this is the most usual. A bill or 
note may be passed on by an assignment, much as any other 



188 Checks and Promissory Notes. 

property may be assigned; it may pass by direction of law, in 
case of the death of the holder or his bankruptcy, or for 
other cause?. When the note or bill is made payable to 
bearer it is transferable by delivery without indorsement. 

REAL, DEFENSES. 

We have indicated that in the majority of cases a bona 
fide holder of negotiable paper for value, may not be defeated 
of his recovery by equities or claims existing against the 
paper as between earlier holders. There are, however, some 
defenses to negotiable paper which grow out of defects inher- 
ent in the instrument itself; these defects are known as real 
defenses, and may be asserted at any time, even against a 
bona fide holder. Among the real defenses are: that the 
defendant was incapable of making the instrument; that the 
instrument is declared void by statute; that the instrument 
is altered in a material respect. The better rule seems now 
to be that a negotiable instrument made by an infant is not 
void, but voidable. It used to be held that a negotiable paper 
signed by a married woman was void. This latter rule ha3 
been done away with by statute, in most states, or at least, 
has been much modified. It would seem that entire lack of 
understanding in the maker of a note would always be a de- 
fense to its enforcement, but the rule cannot be stated here 
with any degree of certainty. Some negotiable instruments 
are declared void by statute, and these, of course, cannot be 
enforced; as an illustration, may be taken notes which at 
their inception violate the statutes against usury in force in 
the state where the note is made. Alteration in a material 
respect, or forgery, is always a sufficient defense. A mate- 
rial alteration discharges the instrument, since it no longer 
reflects the agreement of the parties. Among material 
alterations are changes in the date, time, place, amount and 
in the rate of interest, or the addition or removal of the 
signature of the maker, indorser or payee. These defenses 
may be asserted against a bona fide holder; while personal 



Checks and Promissory Notes. 189 

defenses, which are in general founded upon the contract or 
conduct of a third person with reference to the instrument, 
are enforceable only against that person, and those who are 
by the law in some way made parties to the wrong or partici- 
pants therein. 

PRESENTMENT AND PROTEST. 

It is necessary to present negotiable paper for acceptance 
or for payment, and in case of refusal, to give notice of dis- 
honor, in order to charge all the parties liable on the paper. 
Presentment is usually made by exhibiting the paper at the 
place indicated, during usual and reasonable hours, for 
acceptance, at any time before maturity; and for payment, 
on the day when the bill or note is due. It is not necessary 
that the presentment be personal, so long as it be made at 
the place specified in the instrument. If no place be speci- 
fied, the papers should be presented at the place of business 
or residence of the maker or acceptor. Where in a proper 
case there is refusal to accept a bill or pay a note, notice of 
its dishonor must be given to the drawer of the bill and to 
the indorsers of the bill or note. It is usual also to have the 
paper protested, though this seeems to be necessary only 
with certain kinds of paper. As the protest of a paper 
involves a number of formalities, it should always be 
intrusted to a regular protesting officer at a bank or other 
place of exchange ; he, by his familiarity with the rules, will 
be less liable than others to fall into a mistake. The general 
purpose of notice of dishonor is to communicate to all those 
interested in the paper a knowledge that a party upon whom 
a demand was properly made has failed to assume responsi- 
bility. 

ACCOMMODATION PAPER. 

The making or indorsing of paper for accommodation is a 
form of loaning credit. A desires to borrow $100 of B, who 
is ready to accommodate him, but has not the money. B, 
therefore makes his note for $100 to the order of A, and the 



190 Checks and Promissory Notes. 

borrower, after indorsing the note, takes it to a bank. The 
bank believes B will pay the note at maturity, and lets A 
have $100, less the charges, in return for the note. 

Suppose, now, that this same note is not paid at matur- 
ity. The bank sues B on the note. If this were not accom- 
modation paper, B, as a defense against the bank, might 
allege that the bank, on taking the note, knew that no con- 
sideration had passed between A and B, that the bank, hav- 
ing taken it with knowledge of this defect, was not a holder in 
good faith, and that the want of consideration could, there- 
fore, be set up against the bank; and on proof of these facts 
in the case of a note which had not been given for accommo- 
dation, the bank's recovery would be defeated. Such a deci- 
sion in the case of accommodation paper, however, would 
defeat the very purpose for which the paper was given. So 
it has been decided that a lack of consideration, though 
known to the indorsee, will not defeat his recovery on accom- 
modation paper. The lack of consideration would be an 
effectual defense to an action brought on this note by A" 
against B. 



CHAPTER XVIII. 
SUEETYSHIP. 

Suretyship and Guaranty— Kinds of Guaranty— The Liability of a 
Surety— Consideration for Guaranty— Effect of Statute of Frauds. 

There are many ways in which one person may undertake 
to be responsible for the debt, default or miscarriage of 
another, aside from becoming an indorser on his note. Any 
such agreement, must, of course, always be in writing. If I 
go to a store with a friend and say: "Give this man a suit 
of clothes and I will pay for them," the goods are sold to me 
and not to my friend and there is no guaranty about the 
transaction. But if I say : "Give my friend a suit of clothes 
and I will pay for them if he does not/' the goods are sold to 
my friend and my promise is one of suretyship, and must be in 
writing, if I am to be bound by it. Where the contract is in the 
proper written form, many difficult questions may arise as to 
the extent of the liability of one who undertakes to be the 
surety of another, or to guarantee the payment of his debts. 
Many of these contracts of suretyship are in the form of 
bonds, whereby the fidelity of persons handling the money of 
others is assured, and, in recent times these bonds are gen- 
erally given by corporations organized for that and similar 
purposes. 

SURETYSHIP AND GUARANTY. 

Suretyship is sometimes looked upon as the generic term 
including guaranty, indorsements and joint obligations. If 
two men signed a joint note, while one of them received the 
money, the one who did not profit by the transaction would, 
properly speaking, be a surety; again, an indorser of a note 
is a surety, and a person bound by an agreement to pay on 
default of another, is also a surety. Indorsement is com- 

191 



192 Suretyship. 

monly limited to negotiable or assignable paper, and is 
briefly considered in the chapter on commercial paper. 
Guaranty includes most other agreements to pay on the 
default of a person who is primarily liable. 

KINDS OP GUARANTY. 

A guaranty of payment is an unconditional agreement 
to pay on the default of the person primarily liable, without 
need of further proceedings against the latter. In such a 
case, if the bill is not paid when it is due and presented, the 
creditor may, without further ado, call on the guarantor for 
payment. The guaranty of collection is enforceable only 
after failure to collect by legal measures from the one pri- 
marily liable. If legal process were not taken the guarantor 
could not be called upon to pay. An illustration of a con- 
tinuing guaranty would be a promise to be liable for any and 
all materials furnished to another, provided that the other 
did not pay, and with the understanding that the guarantor 
did not assume liability for any obligations exceeding $500. 

THE LIABILITY OF A SURETY. 

The law always favors a surety, and his liability may not 
be extended beyond his specific engagement. In one case 
sureties gave a bond for a bookkeeper in a bank, conditioned 
on the faithful performance of the duties of that office and 
the duties of any other office, trust or employment, relating 
to the business of the bank, which might be assigned to him. 
Later the bookkeeper was promoted to the position of 
receiving teller and then embezzled funds of the bank. It 
was held that despite the language of the bond, the sureties 
were not liable, since the danger of embezzlement had been 
greatly increased by the man's promotion, and a new bond 
should have been executed. It is a general principle that any 
extension of time on an agreement or any variation of its 
terms to which a surety does not assent, will free him. 



Suretyship. 193 

consideration for guaranty. 
It is evident there must be a consideration for every 
guaranty, as this is simply a form of contract. If A go with 
B to the grocery store and say to the grocer, "If you will let 
B have certain goods, I will pay for them, if he does not," 
there is sufficient consideration for a guaranty, since the gro- 
cer is parting with the possession of his goods. If, on the 
other hand, after the goods are delivered to B, A then appears 
and makes this promise, there is no consideration, and the 
guaranty must fail on this ground, to say nothing of other 
objections against it. 

EFFECT OF STATUTE OF FRAUDS. 

In the chapter dealing with the Statute of Frauds it is 
pointed out that by this positive rule of law every guaranty 
must be in writing, over the signature of the guarantor. 
Here then is a double difficulty; there must be both a con- 
sideration and a writing. Tor example, take our former 
illustration: If A go with B to the grocer and say again, 
"If you will let B have groceries, I will pay for them, if he 
does not," there is a consideration but no writing, and the 
guaranty is unenforceable. Again, if A take to the grocer, 
after the goods have been furnished to B, a written promise 
to pay for the goods, if B does not, there is a writing but 
no consideration, and again the obligation of guaranty is 
not enforceable. 

It is held that where a man is practically agreeing to pay 
his own debt, though in form his promise is an agreement to 
answer for another's default, the contract is not a guaranty 
and need not be placed in writing. A, for example, pur- 
chased property on which there was a mortgage, but did not 
assume payment of the mortgage. The mortgagee threat- 
ened foreclosure, because the interest was not paid, and A 
guaranteed the payment of the interest if the foreclosure 
were withheld. The forbearance by the mortgagee was a 
sufficient consideration, and it was held here that this prom- 



194 SUBETYSHIP. 

ise, though in form a guaranty, was really a promise for the 
benefit of A, and therefore, that it need not be in writing. 
Once a militia company was enjoying its annual dinner; in 
the midst of the feast the host appeared and demanded pay- 
ment of each of the soldiers. The captain of the company 
requested the host to wait, stating that he, the captain, would 
pay for the dinners, if the others did not. "When an action 
was brought against the captain, it was held that there was 
sufficient consideration for the agreement in the forbearance 
of the host, but that while the agreement was in a sense for 
the advantage of the captain, yet it was not clearly enough 
for his own interest to make it an original promise, and so 
deprive it of its character as a guaranty. It was, therefore, 
held to be a guaranty, and, as it was not in writing, it was not 
enforceble against the captain. 



CHAPTEK XIX. 
MONEY, BANKS AND LOAN ASSOCIATIONS. 

Banks — Governmental Control of Banking Institutions — General Du- 
ties and Liabilities in Making Collections — Special Deposits — 
General Deposits — Bank Officers — Insolvency — National Banks — 
Powers and Liabilities — Savings Banks — Pass Books — Trust Com- 
panies — Building and Loan Associations — Organization and Pur- 
pose — General Powers — Membership Rights and Liabilities — 
Withdrawals — Premiums — Foreclosure — Dissolution. 

Money is the circulating medium used as the representa- 
tive of value, passing currently from hand to hand and law- 
fully tendered and received in the discharge of debts. It may 
be coin which has some value in its own substance, or it may 
be a promise to pay coin on the part of the national govern- 
ment; or of a banking institution, exercising in this respect 
governmental powers, derived from and granted by the gov- 
ernment. Coin, other than gold coin, under the present fiscal 
policy of the world, may have in itself some value and at the 
same time represent the credit of the government which 
issues it; a guaranty being implied, by the act of issuing it, 
to keep it at all times on a parity with gold. Such coin there- 
fore has a value partly its own and partly conferred by the 
credit of the government which issues it. 

BANKS. 

A bank is an institution for the custody and loan of money 
and is often the agency through which the government con- 
trols the circulating medium of the state. It facilitates bus- 
iness by the exchange and transmission of money through 
bills of exchange, drafts and checks, the discounting of com- 
mercial paper and the issuance of its own promissory notes 
payable to bearer as currency. Quite recently, through the 
formation of trust companies, the business of banking has been 

195 



196 Money, Banks and Loan Associations. 

extended to the functions of acting as executor or adminis- 
trator of estates, as trustee under wills and contracts and, 
sometimes, as guardian of infants. Banking institutions 
include National banks, State banks, Private banks, Savings 
banks, and, in a way, Loan and Trust companies and Savings 
and Loan associations. These may be banks of deposit, banks 
of discount and banks of circulation, or may perform some of 
the acts incident to banking business. 

GOVERNMENT CONTROL. OF BANKING INSTITUTIONS. 

Banks and trust companies are usually incorporated under 
general statutes which regulate and determine their powers 
and functions. In the issuance of their notes as money, banks 
exercise a franchise which is under the full control of the 
state and national governments, and most states forbid the 
issuance of such notes by private bankers. The statutes under 
which banks are incorporated usually provide for state inspec- 
tion, and regulation in other particulars. Private banking by 
persons other than corporations is becoming more unusual and 
in some states is forbidden altogether. Under modern condi- 
tions banking can scarcely be said to have the elements of a 
private business. Banks generally have the power to borrow 
money and to secure the indebtedness thus created by mort- 
gage or otherwise; to buy, sell and collect commercial paper; 
to take personal property or real estate upon executions in 
their own favor or upon foreclosure of their mortgages or 
other liens; to act as agent or broker in the negotiation of pur- 
chases and loans and investment in stocks; to prefer depositors 
over other creditors by mortgage or other security. On the 
other hand they may not enter into general speculation or 
trading apart from their own bona fide business. It seldom 
happens that any one bank undertakes to exercise all of these 
functions and usually the extent of its business and the char- 
acter of its investments are strictly confined in its charter to 
the particular class of banking business which it is formed to 
undertake. 



Money, Banks and Loan Associations. 197 

duties and liabilities in making collections. 

A bank which undertakes to make collections is liable for 
any negligence in performing its duty and is bound to exer- 
cise reasonable skill and ordinary diligence; but in the ordi- 
nary course of business it is not a part of its duties to institute 
suit and employ legal counsel for that purpose. According 
to the best authority the bank undertaking the collection of 
commercial paper is liable to its depositor for the defaults 
and neglects of the corresponding bank to which it has sent 
the paper for collection. The title to the paper deposited for 
collection remains in the depositor. 

SPECIAL DEPOSITS. 

A bank accepting a deposit of money or securities for a 
special purpose takes them upon the faith and confidence that 
they will be applied to that purpose, and has no right to divert 
them to another, even to the payment of its own debt. Such 
special deposits may be for the purposes of collection, as col- 
lateral security, to meet maturing indebtedness, for invest- 
ment, or merely for general safe keeping. The bank does not 
insure the safety of these special deposits unless the agree- 
ment to do so is specific; but it is usually liable for any negli- 
gence in keeping them. 

GENERAL DEPOSITS. 

These become the property of the bank and the bank 
becomes simply a debtor of the depositor to the amount of the 
deposit, which bears interest or not, according to the agree- 
ment made at the time. It has the right to set off the deposit 
against any debt due it by the depositor which has matured, 
and a deposit is always regarded as general unless made spe- 
cial by contract. Except in the case of savings banks, deposits 
are subject to check and may be withdrawn at any time. If 
the bank negligently suffers the deposit to be withdrawn by 
any one not having the proper authority, it is liable. Firm 
deposits may be withdrawn by the surviving partner, and 
deposits in the name of husband and wife may be withdrawn 



198 Money, Banks and Loan Associations. 

by the survivor. If an account is overdrawn, the bank, of 
course, has a cause of action against the person on whose 
account it has paid the overdraft. In the case of general 
assignments and bankruptcy the right to withdraw the 
account passes to the assignee or trustee. A depositor is pre- 
sumed to be the owner of the fund which he deposits; but if 
a bank knowingly permits the misappropriation of a trust 
fund and has knowledge of all the facts, it might, under special 
circumstances, become liable for the breach of trust. If the 
trust funds remain in the bank to the credit of the trustee in 
his individual capacity, they are still charged with the trust ; 
and can be reached by the true owner by proper legal pro- 
ceedings. The entries of the bank's teller in the pass book 
bind the bank, except in cases of mistake which can be clearly 
proved and explained ; and the holder of the book is bound to 
use due diligence in discovering and reporting mistakes. 

BANK OFFICERS. 

The officers of a bank are presumed to know its condition 
and to be aware of the transactions which appear upon its 
books. Their acts within the scope of their authority bind the 
bank; and notice to them of any matter connected with their 
customary duties is notice to the bank thereof. They are lia- 
ble both to the bank and to its creditors for the negligent per- 
formance of their duties, and other liabilities are often fixed 
upon them by statute. They have no right to use their 
knowledge of the bank's affairs, or its credit, for their own 
benefit. 

INSOLVENCY. 

"When a bank is known by its officers to be insolvent it is 
their duty to close up its business. The receipt of deposits 
under these circumstances is a fraud, and title to the deposit 
remains in the depositor. The winding up of national banks 
is governed by acts of Congress, and of state banks usually by 
state statutes. It is customary to appoint a receiver to close 
up the affairs of an insolvent bank. The capital stock is a 



Money, Banks and Loan Associations. 199 

trust fund for the payment of the debts of the bank, and no 
part of it is to be paid to the stockholders until the debts are 
satisfied. 

national, banks. 

These are private moneyed corporations, organized under 
the national bank acts of 1863 and 1864, for the purpose of 
providing a uniform and secure currency for the people, for 
facilitating the operations of the United States treasury, 
and for the convenience and profit of the holders of United 
States bonds. Except as permitted by Congress, the states 
«an exercise no internal control over their course of busi- 
ness; but they are, of course, subject to the general laws of 
the states in which they are located, just as is any other per- 
son or corporation. They are under the direct supervision 
of the United States Comptroller of the Currency; and it is 
his general duty to protect, as far as he may, the depositors, 
creditors and stockholders of such banks, from fraud, negli- 
gence and mismanagement; to appoint a receiver to wind up 
their affairs in case of insolvency; to enforce the liability of 
stockholders, and to institute suit for a dissolution of the 
bank under proper circumstances. 

powers and liabilities. 

Such banks may exercise all the powers incident to the 
conduct of the business of banking, in discounting and nego- 
tiating notes and drafts, buying and selling coin and bullion, 
loaning money on personal security and real estate mort- 
gages, issuing and circulating notes, and collecting commer- 
cial paper. They have no power to loan their credit as accom- 
modation indorser, or to make loans to any one person or 
corporation in excess of one-tenth of their capital stock. The 
government, while undertaking to supervise their manage- 
ment, does not insure their solvency or make itself liable 
for their debts. Congress has limited the states to taxa- 
tion upon the shares of national bank stocks, rather than 
upon their capital and property. In the case of the insolv- 



200 Money, Banks and Loan Associations. 

ency of a national bank, each stockholder may be assessed 
for his proportionate share of the deficit, up to the par value 
of his stock; but the fact that some of the shareholders are 
unable to meet the assessment, will not increase his burdens. 
The ordinary priority of the United States government over 
other creditors does not include bonds deposited in national 
banks for the redemption of their circulation. 

SAVINGS BANKS. 

These institutions are created for the benefit of wage 
earners and persons who desire to accumulate small savings. 
In this sense, therefore, they are not private institutions 
organized for the purposes of gain, in trade and commerce; 
and the first and foremost object is not the gain and advan- 
tage of their incorporators and stockholders, but of their 
depositors. They do not issue currency, nor generally are 
they permitted to go into the business of discounting paper. 
They usually have implied power to borrow money and give 
security for it in the ordinary transaction of their business. 
The character of the investments which they may make is 
usually strictly prescribed in their charters or in the general 
statutes under which they may be incorporated, and they are 
subject to state regulation, inspection and control. The sav- 
ings bank is usually regarded as a trustee for its depositors, 
rather than merely a debtor to them. In some states the 
depositors are entitled to share in the profits of the bank 
and are required to bear its losses in proportion. 

PASS BOOKS. 

Deposits are usually to be paid only upon presentation of 
the pass book in which they are entered, instead of by check, 
as in other banks; and there are often regulations requiring 
a notice of from thirty to sixty days before deposits can be 
withdrawn, which the officers of the bank can enforce at 
their option; such regulation being made to prevent "runs" 
on savings banks in time of panic. Where a deposit is paid 
to any one apparently in the lawful possession of the deposit- 



Money, Banks and Loan Associations. 201 

or's pass book, the bank is protected in the absence of negli- 
gence. The delivery of a savings bank deposit book to 
another, with the intention to make a gift of the deposit, 
makes a valid transfer of the fnnd in the bank; but in the 
absence of the intent to give, there is no gift. The question 
as to the intent with which the pass book is delivered may 
also be affected by the manner in which the deposit was 
made, whether generally; or to the order of the depositor; 
or jointly with some other person. The deposits in savings 
banks usually bear interest, regulated by statute and the 
by-laws of the bank. 

TRUST COMPANIES. 

These concerns have sprung into great importance in the 
last decade. They are generally banks of deposit, and hold 
such deposits subject to check. They are incorporated under 
charters and statutes prescribing their powers and duties. 
They do not ordinarily deal in commercial paper, nor do they 
issue notes for circulation. They generally pay interest on 
deposits. They are, nevertheless, not regarded strictly as 
banking institutions. They extend their functions into real 
estate transactions, trusteeships, and the conduct of general 
property interests. These sometimes include the formation 
of combinations of capital into trusts, and acting as trustee 
for the holders of mortgage bonds upon corporate property. 
They are, in fact, called into being by the needs of modern 
business life, which far transcend the ordinary powers and 
functions of a bank. 

BUILDING AND LOAN ASSOCIATIONS. 

Such institutions are not banks at all; but they have 
been and are a means by which small savings can be accumu- 
lated and applied to useful purposes; and when properly 
managed, they have proved of great advantage to people of 
small incomes in the acquirement of a home. In their earlier 
days they were not subject to much inspection or regulation 
on the part of the state, and many of the resulting mischiefs 
have been due to this fact rather than to any evils inherent 



202 Money, Banks and Loan Associations. 

in the system itself. Gradually the state has acquired the 
powers necessary to the protection of investors and borrow- 
ers, and in many states such institutions are placed more or 
less under the control of the state banking departments and 
are recognized, if not as banking institutions, at least as con- 
cerns in which the money of individuals is deposited in the 
form of small savings, for investment and profit. 

ORGANIZATION AND PURPOSE. 

Such institutions are usually formed for the purpose of 
accumulating funds by means of regular periodical pay- 
ments, which may be advanced to members to assist them in 
acquiring homes. As the plan developed, many persons who 
did not desire to build or borrow, but merely to invest, took 
this means of accumulating small savings. In this way two 
classes of members ordinarily arise: borrowing members, 
who have made loans and built or purchased homes or merely 
raised money on the property which they have, by means of 
a mortgage to the association ; and members who have simply 
deposited their money in the association as an investment. 
Each member of the association subscribes to a certain num- 
ber of shares of stock of a fixed par value, for which he pays 
gradually in installments under penalty of fine in case of fail- 
ure. The profits are accumulated along with the payments 
on the stock, and the fund thus created is held for the ulti- 
mate benefit of the members. The borrower is advanced the 
amount of the stock for which he subscribes, and the install- 
ments paid in, together with the profits, are usually applied 
on his debt. The deposits of the non-borrowing member, on 
the other hand, stand to his credit, together with the profits 
upon the books of the association. When all the shares 
mature at the same time, and the objects of the association 
are attained when they are paid up, and the association 
comes to an end, it is called a "terminating" association. 
Where the stock is issued in series, each terminating sepa- 
rately, it is called a "serial" loan association. An association 



Money, Banks and Loan Associations. 203 

which issues stock at any time and which does not contem- 
plate ultimately accomplishing its purposes and winding up 
its business is called a "permanent" association. National 
associations extend their business throughout different states, 
while local associations confine their operations to some one 
section or locality. 

GENERAL POWERS. 

These include the powers incident to all corporations. 
The by-laws of such associations bind all of the members 
and, while they must be reasonable and not in conflict with 
the charter or with public policy, within these limits they de- 
termine the relations of all the members to the association, 
fix the fines, dues, premiums, and conditions of withdrawal. 
Such associations may both lend and borrow money; but the 
borrowing must be within the purposes of the association, 
and the lending confined to members, upon real estate secur- 
ity. They also, of course, have power, under proper circum- 
stances, to invest their funds in real estate and other safe 
securities. 

MEMBERSHIP RIGHTS AND LIABILITIES. 

Membership is acquired by anyone holding the stock. 
The rights of members under the charter and by-laws have 
been stated as follows: To remain a member until the stock 
has matured, unless the association be dissolved or he with- 
draw; to receive his equitable proportion of the assets upon 
dissolution; to receive on maturity, the par value of his 
stock, unless it has been advanced as a loan; to withdraw; to 
receive a loan. Each member, whether borrower or lender, 
participates in the profits and must share the losses. He 
must pay the required fines and dues and may suffer forfeit- 
ure of his stock in default thereof, if the by-laws so provide. 

withdrawals. 
Most of the complicated questions which arise in law over 
loan associations, spring from the matter of withdrawals. 
These are regulated by the by-laws, and they usually provide 



204 Money, Banks and Loan Associations. 

that the withdrawing members must wait their turn. No 
action lies against an association for the amount of a deposit 
made subject to its by-laws, unless the course of payment 
there laid down is not followed. It is nost ordinarily in the 
contemplation of such institutions that the withdrawals 
shall be many, or frequent. Money accumulated from dues 
and dividends could not be loaned to borrowing members if 
it had to be kept as a reserve fund to meet withdrawals. The 
experience of many associations has been that after a period 
of prosperity there comes a time when there is an accumula- 
tion of real property on their hands which they cannot imme- 
diately turn into money advantageously, while there is on 
the books a long list of depositors who wish to withdraw 
their money. The by-laws sometimes provide that only a 
portion of the funds coming in as dues can be applied to 
withdrawals, and this sometimes produces the result that the 
association has money which it is lending, while members are 
waiting to withdraw. In some states by-laws can be changed 
to modify the right of withdrawal, and in others they cannot. 
This question has been a prolific source of litigation. 

PREMIUMS. 

Where there are many members desiring to borrow, and 
the money available for loans is insufficient to meet the needs 
of all, the loan is given to the borrower willing to offer the 
best terms; and the bonus thus paid in order to secure a loan 
is called a "premium," and is made a source of profit to the 
association. This, in general, is legally regarded as a stock 
transaction, whereby more than the par value is paid, and 
association mortgages thus avoid the taint of usury; some 
courts, however, have looked upon the transaction as the 
payment of interest, and therefore, usurious. It is now 
usually regulated and permitted by statute. 

FORECLOSURE. 

Where the dues of borrowers are not applied directly 
upon the reduction of the mortgage debt, but are merely 



Money, Banks and Loan Associations. 205 

payments upon the stock subscription, until the transaction 
is closed, there may be serious questions arising upon fore- 
closure of a mortgage as to the amount actually due thereon, 
especially if the association has, in the meantime, become 
insolvent. 

DISSOLUTION. 

This may be effected upon the maturity of the stock, 
when the association has accomplished the purposes for which 
it was organized; or it may be by receivership, consequent 
upon insolvency. Under recent statutes in many states the 
attorney general may bring an action on the information of 
the banking department, to put a mismanaged or insolvent 
loan association into the hands of a receiver. 



CHAPTEK XX. 

INSURANCE. 

General Principles of Insurance— Familiar Terms— Insurable Interest 
— The Policy — Representations and Warranties — Waivers by 
Agents— Fire Insurance — Life Insurance — Accidents — Marine In- 
surance. 

In the early days of insurance, the courts were rather 
puzzled over the question whether or not contracts of insur- 
ance were, in fact, a form of gambling; and, therefore, open 
to the legal objection to which all wager contracts are sub- 
ject. If a man agrees to pay me what I may lose, by reason 
of fire, he, in effect, bets that my property will not burn up; 
and I bet that it will. But as he, for a consideration, agrees 
to pay me only so much as I lose, I gain nothing by the 
transaction, but security against such loss. In reality, I 
pay some one to carry a risk which is too heavy for my means, 
while his are adequate to the burden. By this method, indi- 
vidual misfortune is equalized, through the payment of small 
sums, by large numbers of people, to anticipate individual 
loss. But, as we shall see, the principles involved in life 
insurance differ entirely from contracts of indemnity against 
loss by fire. A life insurance company agrees to pay my 
estate so much, upon my death; and, meanwhile, I pay to it 
regular installments, as long as I live. The company bets 
that I am going to live; and I bet that I am going to die. 
But, though there is no real contract of indemnity here, the 
company bases its charges to me upon the certainty of aver- 
age life, and undertakes to indemnify me, as far as the 
amount of the policy goes, for the individual misfortune 
to those dependent upon me, which my early death would 
bring. The contract of life insurance, therefore, while not 

206 



Insurance. 207 

strictly speaking a contract of indemnity, rests, nevertheless, 
upon a similar and allied principle. 

GENERAL PRINCIPLES OP INSURANCE. 

The contract of insurance, save in life insurance, is an 
agreement to indemnify ; that is to say, the sum named in the 
policy is the limit and not the measure of the recovery. So, 
if there be insurance of ten thousand dollars on a house, and 
the damage done be only five thousand, the policy holder 
will receive five thousand dollars, and not ten. The contract 
of insurance is personal, and its benefits may not be extended 
to those who are not clearly entitled to them under the pol- 
icy; it is also true that the insurance company has a right to 
know with whom it is dealing; thus an insurance company 
could undoubtedly revoke a fire policy issued to a firm, on 
the addition of a new member to that firm. The contract of 
insurance is one of the utmost good faith, in which neither 
party will be allowed an unfair advantage. 

FAMILIAR INSURANCE TERMS. 

The ordinary terms of insurance are familiar from com- 
mon usage, and yet probably they are frequently used with, 
out a clear understanding as to just what is meant. An 
agreement for insurance is simply a contract, subject in the 
main to the rules governing other contracts, and a policy is 
the evidence of the contract. A valued policy states the 
value of the article insured at a certain amount. If a valued 
policy for cattle actually worth twelve thousand dollars was 
issued, and the value was stated in the policy to be nine thou- 
sand dollars, and two-thirds of the animals were lost, the 
owner could collect only two-thirds of nine thousand dollars; 
that is to say, six thousand dollars, and not the eight thou- 
sand dollars, which would represent two-thirds of the actual 
loss. An open policy sometimes indicates that the value of 
the articles insured is left to be determined at a later time. 



208 Insurance. 

Sometimes the same term indicates that the insurance is on 
a changing line of goods, as for example, such goods as are 
listed in a certain book. The endowment policy commonly 
provides for the payments of life insurance when a person 
reaches a certain age, or on his death, if sooner. Tontine 
insurance indicates a method by which those living longest 
share most largely in the benefits. 

Re-insurance is the term commonly employed when one 
company divides its risk by taking out insurance in another 
company on the property covered by its own policy; in every- 
day speech we should call this "hedging." The certificates 
issued by the various fraternal orders which do insurance 
business resemble policies, and are in the main governed by 
the rules which are applied to policies. Fraternal organiza- 
tions are allowed more freedom in dealing with their members 
than are insurance companies, but the principle is in each case 
substantially the same. Although plate-glass, boilers, credit, 
crops, and a hundred other things, are now insured, the four 
chief branches of insurance are life, fire, marine and acci- 
dent. The word Lloyds was originally only applied to 
marine insurance. Lloyds, a coffee house in London, was a 
resort for seafaring men, and we learn by an advertisement 
in the London Gazette of 1688, concerning a supposed theft 
by "a middle sized man with pockholes in his face" that the 
coffee house was then located in Tower Street. Soon there- 
after it was moved to Lombard Street, and there became 
known throughout the world as a center of marine under- 
writing. The Lloyds policy is still the basis of marine poli- 
cies in the United States, and though it has been called 
"absurd and incoherent" by the courts, its stability seems to 
satisfy ship owners. 

INSURABLE INTEREST. 

One of the terms frequently used in insurance deserves 
a separate paragraph. Every insurer must have an insurable 
interest, which, in the insurance of property, means some 



Insurance. 209 

right of property in or liability with, respect to the thing- 
insured. So if the subject of the insurance were a load of 
lumber, the owner, a person holding a mortgage on the lum- 
ber, a person with whom the lumber had been placed as a 
pledge, any other person who had a lien on the lumber, or a 
railroad company which was liable for its safe transportation, 
would each have an insurable interest therein, which would 
enable each of them, in a proper case, to take out a policy of 
insurance on the property. In life insurance there is said to 
be an insurable interest in the person insured and in those 
who are to derive from him advantages springing out of the 
contract ; that is to say, in his creditors and in those who are 
both related to the insured and dependent upon him. Thus 
a sister supported by her brother would have an insurable 
interest in his life, but, on the other hand, the brother would 
not be entitled to take out insurance on the life of the sister. 
Everybody of course, has an insurable interest in his own 
life, and he may make the insurance payable to whomsoever 
he choose, without reference to interest. So, too, in some 
states, a person who has an insurable interest in the life of 
another, may take out insurance on that life and then make 
a valid assignment to a person who has not such an insurable 
interest. 

THE POLICY. 

Every policy used by a reliable insurance company, 
whether for the protection of property or of life, represents 
years of painstaking study and bears on its face the history 
of its development. It is evident that only the most general 
statement as to policies can be made here. Of the marine 
policy we have already said a word. Some states now require 
all fire insurance companies insuring property within their 
limits to use a specified form of policy, which is substantially 
the same for every building insured against fire throughout 
the state, though the parties may add additional clauses. 
This gives uniformity and enables the courts more readily 



210 Insurance. 

to pass upon the multitudinous questions which are contin- 
ually arising under fire policies. While insurance companies 
are compelled to adopt these standard policies in certain 
instances, they have taken good care to see that their rights 
are reasonably conserved by the terms of the document, and 
there will always be found in such a policy many paragraphs 
of closely printed conditions. Indeed there has been a gen- 
eral feeling of late, not only in the courts and among those 
who take out insurance, but also among the companies them- 
selves, that this matter of conditions in policies 'has been 
rather overdone, and that the most advantageous policy both 
for the insured and for the company, is the simplest. A New 
York judge not long ago, referred to a "condition, crouched 
unseen in the tangle of printed matter with which a modern 
policy is overgrown," as though it were a wild beast ready 
to spring from its lair. In life insurance there is less uni- 
formity, but the general tendency here again is toward sim- 
plicity, with a common clause that, if the premiums be paid 
and accepted for two years, the policy, after that time, shall 
be incontestable. 

REPRESENTATIONS AND WARRANTIES. 

The statements made in policies are commonly known as 
warranties. A collateral statement made at the time of 
effecting insurance by the insured, but not embodied in the 
policy^ is called a representation, and a failure to disclose 
information is sometimes known as a concealment. It is 
generally held that a warranty, if untrue, avoids the policy. 
Thus it will be seen that in taking out a policy of life insur- 
ance, it is of the utmost importance to answer correctly the 
many questions put to the applicant and appearing with his 
answers in the policy ; because each one of these answers is a 
warranty. It is plain enough that if a man who were sixty 
years of age, applied to an insurance company and secured 
insurance on the statement that he were only fifty, the insur- 
ance company would be aggrieved, and might properly ask 



Insubance. 211 

to be relieved from its bargain; if for some peculiar reason 
a man who, as a matter of fact, was fifty, on applying for 
insurance, gave his age as sixty, though the contract thus 
secured would be advantageous to the company, nevertheless 
this is a warranty and it is untrue, and would in most states 
be sufficient to avoid the contract. A representation usually 
avoids contract if it is both untrue and material. A conceal- 
ment usually puts an end to the insurance only when it was 
known to be material and was not disclosed. The rule as to 
concealments in marine insurance is not precisely the rule 
here stated. 

WAIVERS BT AGENTS. 

A vexed question is as to the right of the agents of insur- 
ance companies to waive provisions in the policy. Insurance 
agents are usually eager to write business, and often will 
agree by word of mouth to almost anything, but when the 
applicant comes to make his claim to the company, he may 
be confronted with the statement that the agent has waived 
or authorized something without authority, and, therefore, 
the policy is not good. Most policies now contain a condition 
that no waiver will be recognized by the company unless it 
be put in writing and affixed to the policy, and this pro- 
vision is usually held by the courts to be reasonable. One 
should be careful, therefore, to see that any special privilege 
granted by an insurance company is written on the policy. 
Most fire insurance policies contain provisions against 
vacancy, limitations on the right to make repairs and the 
like, and here any special privilege should always be written 
by the agent on the policy. It is undoubtedly true that hold- 
ers of policies often present most unreasonable claims against 
insurance companies, on the ground that there has been a 
waiver or mistake by the insurance agent; for example, not 
long ago the holder of a policy endeavored to collect for the 
destruction by fire of property which was not in any way 
mentioned in the policy, the theory being that the agent had 



212 Insurance. 

been requested to draw a policy for the property destroyed, 
but as a matter of fact bad, by mistake, put in a description 
of the property which was actually covered by the policy. 

In closing this chapter, a few of the more salient features 
of the main divisions of insurance may be pointed out. 

FIRE INSURANCE. 

The best method of obtaining some inkling of the law and 
system of fire insurance is by the study of one of the standard 
fire policies adopted by a state, or of a policy issued by one of 
the leading fire companies. A number of the clauses in such 
a policy will at once attract the attention. The policy will 
probably contain a provision that the company is to be liable 
only to indemnify the owner; that the interest or ownership 
of the person taking out the insurance must be stated; that 
no other insurance must be taken out on the same property 
without the consent of the company; that repairs on the build- 
ing must be made only under certain conditions; that the 
company will not be liable for loss caused by invasion, riot, 
civil war, or by theft, or, ordinarily, by explosion or light- 
ning, unless such liability is expressly assumed; that the com- 
pany will not be liable for loss of accounts, bills, currency or 
deeds ; that the policy may be cancelled by either side on giv- 
ing proper notice; that the company may, if it so elect, re- 
build. On many fire insurance policies are found various 
clauses, as for example, the mortgagee clause, which directs 
that the loss shall be payable to the person holding a mort- 
gage on the premises, to the extent that the interest shall 
appear; a clause for co-insurance or the division of the risk 
among several companies; a clause for the insurance of rent 
and the like. It is well understood that it is of the first im- 
portance to pay promptly all premiums on any insurance, as 
otherwise the company's liability may suddenly end. 

LIFE INSURANCE. 

This is the only kind of insurance in which the contract 
is not an agreement to indemnify. A man whose life is 



Insurance. 213 

apparently worth very little to anybody, might, if he choose, 
insure himself for millions of dollars, and the companies 
would be obliged to pay on his death. Life insurance has 
become one of the most common methods of making a pro- 
vision for one's family after death, and in several states there 
are laws providing that an insolvent may use a small such each 
year for the purpose of purchasing life insurance for the ben- 
efit of his wife. If life insurance be made payable to a man's 
wife, it does not then pass by his will, nor is it a part of his 
estate, if he die intestate. If, however, the insurance is made 
payable to his estate, it is then part of his own property on 
death. In mutual life insurance companies premiums in the 
form of assessments are often called for at the time of loss. 
A proper notice must be given, and it is often difficult to 
determine whether or not proper measures have been taken 
to secure this end. Life insurance is not payable in case of 
suicide, in the sense in which the term is ordinarily used, and 
an ordinary life insurance policy includes a clause to that 
effect. A different question arises where the suicide was com- 
mitted by a man while insane. The company generally suc- 
ceeds by stipulation in the policy, in freeing itself from lia- 
bility in the latter case, also. Most life insurance policies 
contain a provision that no assignment shall take effect until 
Avritten notice thereof shall be given to the company. This 
provision does not prohibit an assignment, and it is generally 
doubtful whether this condition in the policy is enforceable. 
The rule making the policies of some insurance companies 
incontestable after two years usually does not cover cases 
where there is an allegation of fraud or of non-payment of 
premiums. 

ACCIDENTS. 

Accident insurance is somewhat closely allied to life insur- 
ance, and the two are not infrequently written together. A 
writer on insurance has defined an accidental injury as one 
that happens to the insured, without the concurrence of his 



214 Insurance. 

will or intent, but may be the result of bis intentional act, 
provided only sucb result was not foreseen. The example 
given by tbe writer is that of a man jumping from the plat- 
form of a train of cars under sucb excusable circumstances 
that no harm could have reasonably been expected to follow. 
An accident usually covers the injury inflicted by another 
person. The words commonly nsed in accident insurance 
policies are that the company insures against injury from 
external, violent and accidental means. The consideration 
of these words by the courts, however, is liberal to the 
insured; thus for example, a recovery has been allowed where 
a man suffered from choking in swallowing a piece of beef. 
Accident insurance policies often undertake to decide many 
questions themselves, but in these cases the courts usually 
refuse to be deprived of their privileges; for example, acci- 
dent companies often refuse to pay for injuries where there 
is no visible mark on the body. This consideration probably 
would not carry much weight with a court, and a recovery 
might frequently be had without any such external evidence. 
Generally speaking, the holder of an accident policy will lose 
his right to recover by being injured while violating the law, 
as a result of voluntary exposure to unnecessary danger, or 
while following an especially hazardous employment. No 
general rule can be laid down, however, as the entire contract 
is governed by the terms of the policy. 

MARINE INSURANCE. 

There are said to be three implied warranties in a marine 
policy; that is to say, the company is entitled to assume that 
the vessel is seaworthy, that the adventure or voyage is to be 
legal, and that there will be no deviation from the course. If 
these requirements are not complied with when the policy is 
taken out, the company may later refuse to be bound. A 
vessel is seaworthy when her timbers, sails and machinery are 
all ship shape, and when she is possessed of the proper sailing 
papers and of a sufficient crew. Under legality of adventure, 



Insurance. 215 

it is clear that no insurance company should be called upon 
to insure a privateer or other craft engaged in illegal and 
dangerous voyages. By the warranty as to deviations, is 
meant that the ship will follow the course announced to the 
insurers. Some ships, of course, have no definite route, going 
wherever business may be found. A vessel is always entitled 
to deviate from its course for the purpose of saving life. 

If it is necessary to cut a mast out of a vessel at sea to save 
the craft and her cargo, the loss will be apportioned among the 
owners of the ship, the owners of the cargo and those who are 
to receive the charges for the carriage of the freight, the 
theory being that the sacrifice which was necessary for all, 
should be shared by all. If the vessel itself were safe but 
had been overladen with perishable freight, as for example, 
with fruit, and then to save all the cargo from rotting, it was 
necessary to throw overboard a portion, the rest of the cargo 
would be called upon to pay its share of the loss. These prin- 
ciples are recognized by insurance companies in paying 
marine insurance. 



CHAPTEE XXI. 
KEAL ESTATE. 

Fixtures— Intention of the Parties— Trees, Crops and Ice— Rolling 
Stock and Other Doubtful Cases — Manure — Church Pews — Money- 
Land. 

It does not seem at first thought a difficult problem to 
distinguish between real estate and personal property. 
Everybody knows that a field or a house is real estate, and 
that a wagon or a cow is personal property. The difficulty 
arises in the case of property which is on the border line. 
What kind of property, for instance, is the key to a house, 
or the detachable shutter of a building? The law has never 
formulated any list of things which are considered real estate, 
and the only way the question may be solved with reference 
to these doubtful articles is by applying tests which have long 
been recognized by the courts. In the first place, real prop- 
erty is generally fixed and immovable; while, on the other 
hand, personal property is generally movable. This is not an 
absolute test, though it is probably the one most generally 
applied to the solution of the question. Those persons who 
take the land of a man who dies intestate are called his heirs, 
while those to whom his personal property goes are known as 
his next of kin or distributees. While a wife has a dower 
interest in the lands of her deceased husband, she is not one 
of his heirs, but she is one of the distributees. Thus, for the 
purpose of solving the question whether a certain article is 
real or personal it is sometimes necessary to look back in the 
books and find whether in similar cases on the death of the 
owner, property of that character passed to heirs or to dis- 
tributees. It used to be the rule that real property could 
never be taken on execution for a debt. This rule has been 



Real Estate. 217 

considerably modified in modern times, but it is still gen- 
erally true that a debtor's personal property must be 
exhausted on levy under execution before his real property 
may be seized. Here again is another method of distinction. 

FIXTURES. 

A fixture has been defined as an article originally per- 
sonal, so affixed to realty as to cause doubt to arise whether 
it be real or personal. Looking at a fixture in the light of this 
definition as a sort of interrogation point, it will be seen that 
the key and shutter of which we spoke are both fixtures. 
The same question may frequently arise as to machinery, 
movable buildings, boilers, and a great number of other arti- 
cles. Some authorities use the word "fixture" in the sense of 
an article originally personal, which has been so annexed to 
the realty as to become realty itself; this, however, is not the 
sense in which the term is used here. The courts have fixed 
upon two principal tests for determining whether a fixture is 
real property or personal property. The first and more 
important of these tests is in the annexation of the article to 
the realty. A pivotal question to be asked here is, "could 
the article be removed and leave the realty without repair in 
as good state as before ?" If it can, it is quite likely that the 
article is personal; if it cannot, the article is undoubtedly real 
property. If, for example, a staircase were built on the outside 
of a house and so attached to the house that when it was pulled 
away several pieces of the clapboard came with it, that stair- 
case would undoubtedly be regarded as real property, because 
after its removal, the real estate without repair is not in as 
good condition as it was formerly. It would not satisfy the 
requirements of the test, if, after the staircase were removed, 
the boards were put back and again properly fastened in 
place, because there has been repair. So, again, if a fixture 
be necessary for the support of the wall of a building, it is 
safe enough to say that it is real property. In some states 
there are special statutes fixing the character of certain kinds 



218 Eeal Estate. 

of property under varying conditions, the general tendency 
of these statutes being to declare personal, articles which 
would otherwise be looked upon as real property. There is 
an exception of this kind in the state of New York for things 
annexed to buildings for purposes of trade and manufacture, 
under certain conditions. 

The relationship of the parties who are concerned in 
the land at the time the fixture is placed upon the land, 
and when the question as to its character arises, is also 
regarded by the law as a test. Where the fixture was 
placed upon the land by a man who had a permanent interest 
in the land, the presumption of the law naturally is that 
he placed it there with the intention that it should stay and 
form a part of the real property. This question, it will be 
seen, might arise between the seller and buyer of a piece of 
land, the seller holding that certain fixtures were not carried 
by his deed, while the buyer would assert that they were a 
part of the real property and so covered by the deed. In 
this case the law would be inclined to favor the presumption 
that they were real property, because they were placed upon 
the land by the seller when he had a permanent interest 
therein. The same question might arise between a mortgagor 
and a mortgagee, or between a person who had contracted to 
sell and one who had contracted to buy. A similar dispute 
often arises at a man's death between those who are entitled 
to his real property, and those who are entitled to his per- 
sonal property. In this case the rival claimants are fre- 
quently the heir and the administrator, the latter represent- 
ing the distributees. It is evident that the real property will 
go to the heir and that the personal property will go to the 
administrator, for the benefit of the distributees. There- 
fore it is important to determine as to each article whether it 
is real or personal, and here again the law would be apt to 
favor the presumption that it was real, since the article was 
placed upon the land by the deceased owner at a time when 
he had a permanent interest in the soil. 



Real Estate. 219 

Reasoning in the same way, we see that where a fixture is 
placed upon land by a tenant, it is probably done in the expec- 
tation that it will some day be removed, and, therefore, where 
the fixture is placed upon the land by a person having only a 
temporary interest in the soil, the law will favor the presump- 
tion that the fixture is personal; at least, the rule may be so 
written for ordinary purposes, though in theory the statement 
is not exact. This presumption would arise not only in favor 
of an ordinary tenant, who had leased real estate and placed 
fixtures thereon, but also in favor of the personal representa- 
tive of a man who had had a life interest in a piece of ground; 
upon the death of this life tenant, the land clearly would go 
to some other person and would carry with it all such fix- 
tures as were deemed by the law to be real property; while, 
on the other hand, those fixtures which were regarded by the 
law as personal property, would pass to the executor or 
administrator of the life tenant. 

INTENTION OF THE PARTIES. 

It is clear that the intention of the parties, as shown by 
their acts, by their relationship and by the annexation to the 
realty, has much to do with determining the character of 
property of this kind. The intention that certain articles 
should remain personal property may sometimes be shown by 
acts of the parties interested ; for example, if an owner of a 
piece of land purchased an engine and boiler and gave a chat- 
tel mortgage on them before having them placed on his land, 
it would seem clear that the intention was that these articles 
should remain personal, and that the law would be likely to 
look upon them in that light. Of course, if the boiler were 
built into the wall of the building, so that its removal would 
necessitate the destruction of the wall, it would be regarded 
as real property. 

It is held in some states that, if a tenant, after placing 
articles of personal property upon the leased premises in such 
a manner as to cause question to arise as to whether they are 



220 Real Estate. 

real or personal, renew his lease at the end of his term with- 
out either removing these articles or stipulating in the lease 
that thej are to be regarded as personal, the law will give no 
further heed to the presumption in favor of the tenant that 
the things are personal, but will be liable thereafter to regard 
them as real property. Small portable buildings are some- 
times looked upon as personal property, but as a general rule 
any structure set in the soil is realty. 

TREES, CROPS AND ICE. 

Besides fixtures, there is a great variety of articles over 
the character of which doubt occasionally arises. In this 
class are trees, crops, ice, manure, mines, rolling stock of rail- 
roads, church pews and nursery stock. A growing tree is 
ordinarily a part of the land from which it springs. After 
trees are cut and piled they are likely to become personal 
property. Trees are one of the interests in land which must 
be conveyed by a writing under the Statute of Frauds. It is 
sometimes held that trees may be constructively severed from 
the soil by a writing, and after such a severance sold by word 
of mouth, although, as a matter of fact, they are still upright in 
the soil. These rules do not apply to nursery trees. In 
deciding whether crops are real or personal property, the law 
usually divides them into two groups, known as fruits of 
industry and annual fruits. Fruits of industry are such pro- 
ducts as result from labor, cultivation and successive sowings 
of seed, as for example, crops of wheat, rye, barley and oats. 
Annual fruits, on the other hand, are represented by apples, 
pears and peaches, where the product is from a stock which 
is not continually renewed. The fruits of industry are usually 
said to "run with the land:" that is to say, a deed of land 
covered with wheat ready for harvest will carry the wheat 
with the land, in the absence of special agreement or under- 
standing. On the other hand, crops of this kind may be more 
easily constructively severed from the soil than trees. An 
oral sale will usually carry a man's ownership in a growing 



Real Estate. 221 

crop of rye or barley. The growing crop could, of course, be 
mortgaged in such a way that when the land was sold the 
rights of the chattel mortgagee in the crop would not be inter- 
fered with. Nursery trees are governed by rules similar to 
those governing fruits of industry, and ice is placed by the 
law under substantially the same regulations. In law no one 
owns water save as he owns the soil under that water. A 
conveyance of a pond, therefore, would not particularly 
describe the pond, but would refer, to the property deeded 
as such and such land covered by water. The ice, then, is 
looked upon by the law somewhat as a crop of that land; in 
the absence of special agreement it would generally be car- 
ried by the deed of the land, and, on the other hand, it might 
be sold or mortgaged separately as are crops. There are dif- 
ferent rules in the several states covering the right to cut ice. 
Generally, in a navigable stream, any one may cut the ice, 
unless the right be reserved by special statutes, while in other 
streams the right to cut belongs to the riparian owners. 
Annual fruits are commonly regarded by the law as real prop- 
erty until they are actually picked or severed from the soil. 

ROLLING STOCK AND OTHER DOUBTFUL CASES. 

The rule as to rolling stock of railroads differs in various 
states, with a tendency to regard it as personal. Corporate 
stock is almost always looked upon as personal property. 
Mines are usually real property; but it may be pointed out 
here that there are a number of methods of acquiring owner- 
ship in a mine; one might buy the soil through and under 
which the mine was to be dug, and would in this way acquire 
title to the mine; he might buy a cross horizontal section with 
an opening at the surface of the soil, thus securing the right 
to dig and take out his minerals without interfering with the 
privilege of the owner of the surface soil to continue growing 
his crops. Again, the mine might consist simply of a right to 
take certain metals out of the earth in prescribed quantities, 
and give to the miner no actual title to the soil. 



222 Real Estate. 

MANURE. 

Manure lying about the fields on which it has been 
dropped is treated as real property; especially when it has 
been made from the products of those same fields. "When 
manure is gathered in a pile, the better view would seem to 
be that it is personal property. The question is one of some 
perplexity, and the rules differ in the several localities. 

CHURCH PEWS. 

Church pews are seldom owned in this country by indi- 
vidual members of the congregation, the more usual custom 
being for the church or society to grant a license to a certain 
man or family to occupy a pew for a fixed period, usually a 
year. Now and then, however, especially in old churches, we 
find the pews owned by individuals. Although such pews are 
bought and sold, pass as an inheritance or by devise in a will, 
and may be conveyed by deed, yet the ownership therein 
differs from ownership in a lot of ground, since the right of 
the church to remove the building sheltering the pews and 
the pews themselves in a proper case is recognized. 

MONEY. 

Though money is the last thing one would be likely to 
class as real property, it, nevertheless, sometimes happens 
that the law looks upon dollars as real estate, by virtue of a 
peculiar doctrine known as equitable conversion; or, in other 
words, the doctrine of the change required by fairness. Sup- 
pose a man's will directed that $10,000 of his money, invested 
in a certain place, be spent to buy real estate for a named 
purpose, recognized as proper by the law. Then, so soon as 
the testator died, the law would begin to look upon the dollars 
as realty, although there had been no actual change in the 
investment, and where realty demanded one rule of treat- 
ment and personalty another, the method appropriate to 
realty would be followed. To work this equitable change of 
money into realty, the direction on which the law relies must 
be imperative and for a purpose which does not fail. 



Kbal Estate. 223 

LAND. 

Land includes the surface of the earth and everything 
erected upon its surface or buried beneath it. It extends in 
theory indefinitely upward, to the heavens, and downward to 
the center of the earth. The words "erected upon its sur- 
face" do not, of course, include portable objects which may 
be placed upon land; it will be seen that land takes in not 
merely the surface of the soil, but also buildings upon the 
soil and indefinite extensions in either direction. The air 
over one's house is part of his land, and the wrongful string- 
ing of a wire over one's premises is a trespass, just as the 
intrusion of a miner's tunnel, hundreds of feet under one's 
house is a trespass. 



CHAPTEK XXII. 

OWNERSHIP IN LANDS. 

The Entire Interest, Known as the Pee — Life Estates — Life Estates 
Created by Acts of Parties — Duties of a Life Tenant — Privileges 
of Life Tenant — Life Estates Created by the Law — Dower — Stages 
in Dower — Assignment of Dower — Barring Dower — Dower and 
Curtesy Contrasted — Jointure — Special Statutes. 

An estate, as the term is used in the law of real prop- 
erty, indicates the interest which one has in land and other 
forms of realty. The term relates not to the land itself, but 
to the holding in the land. If A have an absolute ownership 
in one acre for all time, and B be entitled to a life use of 
10,000 acres, A has the larger estate, because an interest for 
all time is in the law a greater interest than a right for life. 
It would be very likely in the illustration given that B's 
estate would sell for more than A's; but A's is nevertheless 
the greater. Estates which are for life or better are called 
freeholds. 

THE ENTIRE INTEREST, KNOWN AS THE PEE. 

The most common interest or estate in lands is the fee, 
and, because it is so familiar it requires less explanation than 
does any other holding. A fee, or, as it is sometimes called, 
a fee simple, is the simple absolute ownership of lands. A 
man may sell or devise by will lands held in fee, and if he die 
leaving such fee lands undisposed of, they will pass to his 
heirs. At the time that our law was derived from England, 
many of the English estates in fee were in theory still held 
upon what were known as feudal tenures; that is to say, the 
man in whose name the title stood, owned the land to all 
intents and purposes about as Americans own estates in fee 
to-day, but he was still obliged to make a certain regular 

224 



Ownership in Lands. 225 

return from the land to some noble or other proprietor who 
represented one of the old feudal lords. The origin of this 
holding lav in the desire of the early kings and upper nobles 
to devise a scheme by which an army could be put into the 
field rapidly. Their plan was to parcel out their land among 
their fellows upon condition that each land owner would, 
upon call, furnish a certain number of soldiers. As times 
became more peaceful the duty to furnish soldiers was 
changed to a duty to make a return in money or property, 
and thus arose the system of feudal tenures, which are theo- 
retically in general use in England to this day, and are occa- 
sionally recognized even in the United States. The farms in 
!N"ew York state known as the manor lands, are still held 
under a species of feudal tenure. The great majority of 
lands in the United States, however, are under an absolute 
ownership. 

LIFE ESTATES. 

It is clear that while a man generally has the absolute 
ownership for all time of any land which he owns, he may 
have a similar holding which will be simply for his life or for 
the life of some other person ; this will enable him to make a 
sale of the property which will give a title lasting as long as 
does his own interest. Such a holding also enables the man 
who has the interest for life, during that period, to treat the 
property much as if it were his own absolutely and for all 
time. It is true, however, as we shall see, that those who are 
to come after the life tenant have certain rights which must 
be recognized. Life estates are commonly divided by the law 
into two groups, those which are created by the acts of the 
parties, and those which are due to the law. 

LIFE ESTATES CREATED BY ACTS OF PARTIES. 

These estates, which are sometimes known as conven- 
tional life estates, are usually stated to be three in number. 
First, the estate for one's own life, the most common of the 
three; if property be given to A for life, with the direction 



226 Ownebship in Lands. 

that on A's death it pass to B, A has the estate for his own 
life, or as it is more commonly put, a life estate. On A's 
death, the property, of course, would not go to his heirs or 
to persons named in his will as devisees, but would pass 
directly to B. If X owned a piece of land and made a con- 
veyance of that land, by which it was conveyed to A for A's 
life, and if nothing further were said, on the death of A, the 
land would go back to X ; or, if X had died in the meantime, 
to the heirs of X, provided the interest had not been in some 
way disposed of by X during his lifetime. The estate which 
B would take in the first of these examples, on the death of 
A, is called in the law a remainder, while the property com- 
ing back to X upon the death of A in the second example, is 
known as a reversion. 

Second among these interests is the estate for another's 
life. Thus, property might be given to C for the life of 
D, with a direction that on the death of D it should pass 
over to E. It is easy to see that if D die before C, the 
property will at once leave C and pass over to E. A more 
troublesome question arises where C dies before D. The 
estate is not yet used up, because it was to last throughout the 
life of D, and E manifestly is not yet entitled to the land. 
D is not entitled to the land because he is not given any inter- 
est by the conveyance, his life serving simply as the measure 
for the duration of the estate. The law used to solve this 
puzzle by allowing anybody who took possession of the land 
after the death of C, during D's life, to retain the property 
for the rest of the life of D. This naturally resulted in 
unseemly scenes; for when it become noised about that a 
person holding land under such a tenure as is here given C y 
was on his deathbed, people would encamp about the prem- 
ises for the purpose of making a rush in when the death was 
announced. This rule seems to have been wholly done away 
with, and the property now passes in some places to the heirs 
of C, and in other localities, to the personal representatives 
of C. It is evident that whoever takes the property after the 



Ownership in Lands. 227 

death of C would be obliged to give it up on the death of D, 
since at that time E's right to it will be enforceable. 

The third of the conventional life estates is not recog- 
nized by all writers; it is said to be an estate granted for an 
indefinite period, which may be for life; as for instance, for 
so long a time as the Delaware river should flow, was prob- 
the grant of land made by the Indians to William Penn, for 
so long a time as the Delaware river should flow, was prob- 
ably one of these so called life estates ; however, for all prac- 
tical intents and purposes it would be a sufficiently good 
estate in fee. 

DUTIES OF A LIFE TENANT. 

The tenant for life of real property must keep the prem- 
ises in substantial repair, must refrain from waste and must 
pay his share of the taxes, interest on mortgages and the 
like. By waste is meant an injury to the property whereby 
the remainderman or revisioner will suffer. It used to be 
held that any change in the character of the land, as for 
instance, from meadowland to woodland, or from woodland 
to pasture was waste. In some parts of our country it is 
manifestly an advantage to the remainderman to have the 
land cleared, and under such circumstances the cutting of 
timber would not be considered waste. In the eastern states, 
however, where timber is scarce, a life tenant must exercise 
great care in removing trees from the land; otherwise he may 
be liable for waste. It would, of course, be waste to remove 
a small grove of trees which had sprung up in one of the arid 
states because of the locality of a stream. If the life tenant 
suffered the buildings or fences to fall into disrepair he would 
again be committing waste. The cutting of valuable timber 
would be known as voluntary waste, since that would be, by 
the tenant's own act, while the suffering of premises to fall 
into disrepair would be known as permissive waste. Some 
states visit heavy penalties on the unauthorized cutting of 
timber, even going so far as to grant treble damages. It will 



228 Ownership in Lands. 

generally easily appear what taxes and interests are to be paid 
by a life tenant. Evidently he should take care of the annual 
taxes imposed by the county and the city or town in which 
the land lies; in the same way if there be a mortgage on the 
premises, it is clear that the life tenant should pay the inter- 
est on the mortgage throughout his tenancy. More difficulty 
will arise in the case of an assessment for a permanent 
improvement. Suppose, for instance, that the tenant for life 
have his estate in a city house and lot, and that an assessment 
be placed upon the property for the purpose of laying a trunk 
sewer. Then it may be necessary for the life tenant and the 
remainderman to institute legal proceedings to fix the 
amount of this assessment, which is to be paid by the life 
tenant, since it is plain that the sewer will benefit not merely 
the life tenant, but also will probably be of advantage to the 
remainderman after the life tenant's death. 

PRIVILEGES OP LIFE TENANT. 

The chief rights of a life tenant are said to be emble- 
ments, or the right to away-going crops, and estovers, or the 
right to wood. Wherever any tenant's estate is of uncertain 
duration, on its unexpected ending he or his representatives 
may harvest crops of annual culture, sown and cultivated by 
the tenant. It is evident that a life tenant's estate is almost 
always of uncertain duration, and so commonly falls within 
this privilege. The right to emblements may be best illus- 
trated by examples: If A have a lease to a piece of property, 
which, by its terms, is to expire just before harvest time, he 
will not have any right to go in and take crops after his lease 
has expired, even though when he leave they be ripe for the 
sickle; since he has lost his profit by his own heedlessness in 
entering into such an improvident arrangement. If, how- 
ever, A be a life tenant and then die on the eve of the harvest, 
after having sown and cultivated his crop, it is manifestly 
unjust that his heirs be deprived of the fruits of his labor; 
therefore the law would allow his representatives to enter 



Ownership in Lands. 229 

upon the land, harvest and take away the crop. If an estate 
be given to a widow to enjoy throughout her widowhood, 
her interest is regarded as a life estate; her subsequent 
marriage will put an end to her rights. If, therefore, she 
were to marry just as her crops were ready for harvest, 
she would lose the harvest, because it is by her own act 
that she has put an end to her estate. Now suppose this 
widow had made a lease to a tenant for a year, which was 
to expire in the early winter, so that the tenant would have 
time to reap and harvest his crop. The marriage of the 
widow would put an end to her estate, but it seems that her 
tenant should not for that reason be robbed of his crops; 
therefore the law would give to him the right of emblements; 
suppose, in the third instance, that the widow married the 
tenant. Here one can only guess at the solution. Under 
the rights of estovers the life tenant may ordinarily take 
such wood from the premises as he needs for his fires and for 
the repair of his fences and agricultural implements. This 
rule is of course subject to exceptions; it is evident that a life 
tenant of a city house could not cut down a magnificent elm 
on his lawn in order to keep his fire ablaze. 

LIFE ESTATES CREATED BY THE LAW. 

The life estates created by the law, or as they are some- 
times called, legal life estates, are three in number: curtesy, 
dower and jointure. Curtesy is the right of a husband to the 
life use of his wife's real property after her death. To give 
a husband curtesy, there must have been a valid marriage; 
the wife must have been seized of the property during cover- 
ture, or the period through which the marriage extended; a 
child must have been born alive during the lifetime of the 
wife, and the wife must have died. It will be noticed that 
curtesy applies to all the real estate of a wife which may be 
inherited. It is clear that if the wife had merely a life estate 
in a piece of property, the husband could not take curtesy 
therein, since the wife's interest ended on her death. Curt- 



230 Ownership in Lands. 

esy affects all the wife's real property of inheritance. If 
when the other requirements already mentioned have been 
fulfilled, the wife die, leaving undisposed of one hundred 
acres of land, the whole hundred acres go to the husband for 
his lifetime. The right of curtesy used to be an absolute 
privilege given to the husband by the law. The recent stat- 
utes enlarging the powers and privileges of married women 
have, however, greatly modified and reduced this right. In 
some states, as for example, in New York, the right of curt- 
esy attaches on the wife's death only to such part of her 
property as remains undisposed of by deed or will. Thus in 
ISTew York a wife may convey away her property without 
securing her husband's signature to the deed, and by a will 
upon her deathbed she may defeat the husband's right to 
curtesy. 

DOWER. 

Dower is the right of a widow to the life use of one third 
of the husband's real property after his death. There must 
have been a legal marriage; the husband must have been 
seized of the land during coverture, and the husband must 
have died. It is not necessary that there should be a child 
of the marriage to give dower. The dower right, like that 
of curtesy, applies only to such lands of the husband as might 
be inherited, and it is clear again that a wife may not have 
dower in her husband's life estate. 

It is common to speak of dower as the interest which a 
widow has in all of the property of her late husband. Some- 
times the words used are "the widow's thirds." We shall see 
later on that on the death of a married man intestate, leav- 
ing children of the marriage, the widow usually takes a third 
of the husband's personal property; this third, however, she 
takes absolutely and for all time, and this right is evidently 
quite distinct and different from the dower right which gives 
her a life interest in one third of her husband's real property 
of inheritance. 



Ownership in Lands. 231 

stages in dower. 

It has been pointed out that wives are now frequently 
able to defeat the right of curtesy by deed or will. It is a 
general rule, however, that a husband may not defeat his 
wife's right of dower. This gives to the dower right more 
value and stability than are found in curtesy. It is com- 
mon to divide a woman's dower right into three stages. First, 
there is the inchoate right of dower, or the interest of a wife 
during her husband's lifetime. This is a mere chance of 
securing property and not property itself. The law, however, 
does in a way recognize this inchoate right of dower. In 
foreclosing a mortgage against a married man it is almost 
always necessary to make his wife one of the defendants so 
as to cut off this right. A man by the name of Thomas Clif- 
ford once put on record a deed signed by himself and Maria 
Clifford, the presumption being that Maria Clifford was his 
wife. As a matter of fact his wife's name was Mary, and 
she had not signed the deed. Mary Clifford was allowed an 
action to cancel the deed in so far as her interests were con- 
cerned. The second stage in dower covers the time between 
the husband's death and the assignment of the lands to the 
widow. Dower is not looked upon as real property until 
after the lands she is to enjoy have been assigned to the 
widow, and after the husband's death and up to the time of 
assignment the law regards dower merely as a right which 
the widow may enforce. After the third part of the hus- 
band's lands has been assigned to the widow, dower becomes 
a life estate and real property. 

ASSIGNMENT OF DOWER. 

This is the term used for the setting aside to the widow 
of the lands which she is to occupy, since her right applies 
only to one-third of the husband's lands of inheritance. 
There are two methods of assignment, one known as the 
assignment of common right, and the other as the assignment 
against common right. These legal terms indicate ideas 



232 Ownekship in Lands. 

which are simple enough. If a man owning thirty acres of 
land died and his son gave to the widow ten of these acres for 
her life as her dower, this would be an assignment of common 
right, since the widow would be taking a part of the land actu- 
ally owned by her husband. On the other hand, the son might 
desire to keep the homestead premises intact, and propose to 
the widow, his mother, that she receive in lieu of ten of the 
homestead acres another piece of land, belonging to the son, 
which had never been a part of the father's property. To 
this arrangement the widow might, if she chose, successfully 
object. If, however, she agreed thereto, the law would say 
there had been an assignment of dower against common 
right. In the first case she takes ten acres which were 
actually occupied by her husband. If it appear later that his 
title to those ten acres was not good, the son would then be 
obliged to give to the widow six and two-thirds other acres, 
representing her third interest in the twenty remaining acres 
to which the husband's title was good. On the other hand, if 
the widow accept land which had not belonged to her hus- 
band, then the assignment is looked upon in the nature of an 
exchange, and she must examine the title carefully, since, if 
there be a defect, she cannot claim other lands from the son. 

BARRING DOWER. 

Since the widow's right to dower is absolute, it is of 
course often important that that right should be barred. The 
simplest method is to have a wife join in the deed of prem- 
ises with her husband. Then, of course, she can not later 
make a claim to dower therein. The annulment of a mar- 
riage bars dower, and this is commonly true of a proper dis- 
solution of a marriage where the divorce is granted for the 
wife's fault. Sometimes the widow waits so long to assert 
her claim for dower that the law holds she has lost her right 
by operation of the statute of limitations. There are other 
less common methods of barring dower. 



Ownership in Lands. 233 

dower and curtesy contrasted. 
A rough contrast may be drawn between dower and cur- 
tesy in this manner: Curtesy gives a life interest in all the 
wife's lands of inheritance; dower in one-third of the hus- 
band's lands of inheritance. The husband is entitled to cur- 
tesy only when a child is born alive during the lifetime of the 
wife; this is not requisite for dower. The wife may often de- 
feat the right of curtesy; the husband may not defeat the 
dower right of his wife without the latter's consent. 

JOINTURE. 

Jointure is a provision made for the wife by the husband 
out of his property and expressed to be in lieu of the dower. 
It is generally true that a valid jointure agreement, which 
will bar the wife's dower right, may be entered into by a man 
and woman before their marriage, but that if the agreement 
be made after marriage, the wife will be allowed on the hus- 
band's death to choose whether she will have her dower or 
the provision made for her by the jointure agreement. The 
law supposes that a woman will not be unduly influenced in 
entering into an antenuptial agreement but that an agree- 
ment made after marriage might be attributed to the undue 
insistence of the husband. It is not necessary that the 
jointure estate be equal in value to the dower right, provided 
it be a substantial provision; and though jointure is com- 
monly considered under the life estates, it is not necessary 
that the provision for the wife be in the form of a life inter- 
est. It has never been easy to satisfy purchasers of land that 
a jointure agreement did away with the necessity of the 
wife's name appearing on the deed, and for this and other 
reasons jointures have become rare. 

SPECIAL STATUTES. 

The rules here indicated for curtesy and dower have been 
largely affected in several states, especially in the West, by 
statutes relating to the disposition of the property of married 
people on their death. It is impossible to indicate here, what 
these statutes are, owing to their great variety. 



CHAPTER XXIII. 
FUTURE INTERESTS IN REAL ESTATE. 

Interests which Arise when Life Estates are Determined — Reversions 
— The Law Prefers Fixed Interests. 

Some of the most intricate legal problems in the law of 
real estate arise out of interests which one may have in ex- 
pectancy, but which are at present of no material benefit to 
him. The interest may be fixed and definite, it may be un- 
certain, depending upon the happening of some event which 
may never occur, or it may be no legal interest at all. If my 
father has a large landed property which he has willed to me, 
I have no legal interest in that property whatever as long as 
he remains alive. He may change his will and leave it to 
some one else at any time. If property is left to me provided 
some one else die without children, I have a legal interest in 
the property, but that interest may or may not be defeated 
by the course of events, the result of which cannot be fore- 
told. Many nice legal questions arise over attempts to sell 
or assign interests of such description. As a general rule 
one cannot sell a mere expectancy, while any vested interest 
is property, and therefore may be bought and sold. 

INTERESTS WHICH ARISE WHEN LIFE ESTATES ARE 
DETERMINED. 

Though conveyancers have time out of mind burned mid- 
night oil in studying and devising various curious forms of 
future estates in land, there are only two with which the 
ordinary man is often concerned, the remainder and the re- 
version. Both of these estates commonly arise upon the de- 
termination of a life estate. A remainder has been defined 
as an estate created by act of the parties to take effect in pos- 
session after the natural termination of a prior "particular" 

234 



Future Interests in Eeal Estate. 235 

estate created at the same time and by the same transaction. 
The word "prior" as used in the definition relates to the life 
estate or other estate which precedes the remainder. If an 
estate is given to A for life, remainder to B for B's life, and 
then remainder to C, we have a good illustration of remain- 
ders. A would hold the property as long as he lived; and then 
it would go over to B; he would likewise have a life enjoy- 
ment of the land, and then it would pass to C. In the same 
way the use of the land might be given to A for twenty years, 
and then to C for ten years, and then the fee to D. A peculiar 
rule of law provides, as has already been indicated in the defi- 
nition, that the remainder must await the natural termina- 
tion of the preceding estate. So an estate to A, a widow, 
until she marries, and then to B, gives B a remainder. If 
the conveyance were phrased, "to A for life, but if she marry 
then to B," the estate going to B would not be a remainder, 
inasmuch as it does not await the natural termination of the 
earlier estate. 

REVERSIONS. 

A reversion is sometimes described as an estate returning 
to the grantor, his heirs or assigns, by act of law. If A own 
the fee in a piece of land and give B merely a life estate, it 
is evident that there is some property left in A, though he 
may not have the enjoyment of it before the death of B. 
This property right remaining in A is known as a reversion, 
and on the death of B the property would go back to A ; or 
in case A had died intestate, it would go back to A's heirs; or 
in case A had conveyed away his interest before the death of 
B, the interest would go back to those persons to whom it had 
been deeded by A. By a peculiar rule of law, the interest 
going to those who took under the deed in this last case, 
would no longer be called a reversion. 

THE LAW PREFERS FIXED INTERESTS. 

This rule, which is of considerable importance, is usually 
stated in the legal form that the law prefers a vested remain- 



236 Future Interests in Eeal Estate. 

der. It is not difficult to illustrate: suppose a will pro- 
vides that all the testator's land shall go to his widow during 
her life and then "to such of my children as may then be 
alive, share and share alike." Although this language would 
seem to indicate plainly that the property was to be divided 
among such children as were alive at the death of the widow, 
yet it has been held in a recent case that under this direction 
as soon as the testator died, each one of his children who was 
then alive would take a remainder in the property; and that 
the remainders would thus vest and be determined as soon 
as the testator died and would not be obliged to await the 
death of the widow. This rule is of importance in this way: 
Suppose that this testator had two sons, and that one son 
outlived the testator by a year, but died during the lifetime 
of the widow. If it be held that the remainder vested at the 
time of the death of the testator, then the son who was near 
death took his share of the property, and on his death a year 
later, it passed to his heirs. If the other rule were followed, 
the son who died during the lifetime of his mother would 
have no interest in the property, and his heirs would have 
no share therein, as it would all go to the son who was alive 
at the time of the widow's death. 



CHAPTER XXIV. 

JOINT OWNERSHIP IN LANDS. 

Joint Tenancies — Tenancy in Common — Conflicting- Rights of Tenants 
in Common — Waste by Co-Tenant — Division of Rents or Profits — 
Taking Farm Products — Attempts to Sell an Actual Interest in 
the Land — Adverse Title Acquired by Co-Tenant — Estates by the 
Entirety — Effect of Divorce on Entirety. 

Each of the cases of which we have heretofore spoken has 
been an estate in severalty, that is to say, an interest in 
which one man held the entire estate. We have, of course, 
spoken of remainders and reversions; and while it is true 
that two or more persons are often interested in an estate 
in which there is a remainder, yet the right to the enjoyment 
of that estate by any one person at any given time, is always 
supreme. It is well known that if a man die intestate, leav- 
ing no relatives except two children, his land will descend 
to those children, and that if he have ten acres of land, the 
law will not say that the five easterly acres go to one child, 
and the five westerly acres go to the other, or make any sim- 
ilar arrangement, but will hold that each child has an un- 
divided half interest in the whole ten acres. Two men may 
own a horse as tenants in common, and it is then perfectly 
apparent that one does not own the legs and the head and 
the other the body, but that each has an undivided one-half 
interest in the animal. Several kinds of joint holding are 
recognized by law. First there is the true joint estate, then 
come tenancy in common, partnership estates, and tenancies 
by the entirety. 

JOINT TENANCIES. 

A strict joint tenancy is much less common now than 
formerly, nevertheless, it is occasionally met with. In a 

237 



238 Joint Owneeship in Lands. 

joint tenancy each tenant is looked upon as owning all of 
the property. As a result, if one of the joint tenants dies, 
inasmuch as the other tenant owns all of the property, it is 
plain that the widow and heirs of the deceased joint tenant 
will take nothing, in so far as the property held jointly is 
concerned, but that the joint land will go to the surviving 
joint tenant or tenants. It used to be the rule that if prop- 
erty were granted to Mr. A and to Mr. B without specifying 
how they were to hold, they would take as joint tenants; 
this rule has been done away with in many states, and A and 
B in these states would now take as tenants in common in a 
manner to be explained later. It is still generally held that 
where land is conveyed or willed to people as trustees, they 
then hold as joint tenants, and on the death of one, the con- 
trol of the land will pass, under the rule already stated, to 
the surviving trustee. 

TENANCY IN COMMON. 

The theory of tenancy in common differs from the theory 
of the strict joint tenancy in this manner: the doctrine of 
law with respect to joint tenancy, as we have already seen, 
is that each tenant owns the whole of the land. In tenancy 
in common, however, the law supposes merely that each 
tenant has an undivided interest in the land. Thus it is ap- 
parent that if a tenant in common of a piece of land die, his 
interest will descend to his heir or pass by his will to his 
devisees. It is not always necessary that tenants in common 
have similar interests. The estate of one may be merely for 
his life, while the other may have a fee, both estates existing 
together in the same land, and the owners still being tenants 
in common. 

CONFLICTING RIGHTS OF TENANTS IN COMMON. 

Experience tells us that tenants in common are partic- 
ularly liable to fall into disputes with reference to the land 
and its products. A tenant in common may without the con- 
sent of his co-tenants give an absolute title to his undivided 



Joint Ownebship in Lands. 239 

share in the common estate. Occasionally, however, a tenant 
in common takes upon himself to make an actual division of 
the property and to give, without consent of his co-tenants, 
an absolute title to a part of the estate measured by metes 
and bounds, which he deems equivalent to his undivided in- 
terest in the whole. It has sometimes been held that such a 
deed conveys to the grantee no interest in the general estate, 
while other cases have in a measure supported such attempts 
to convey, but even then it is held that the grantee receives 
only an undivided interest in the land conveyed, and not the 
whole title. 

WASTE BY CO-TENANT. 

If one co-tenant misuse or abuse the property he may 
be liable to the others for waste, but in general damages will 
be given only where the waste complained of results in an 
actual injury. Such acts as pulling down houses or cutting 
valuable timber might often constitute waste in a co-tenant, 
and from willful and malicious destruction of property he 
might be enjoined. Where repairs are necessary to prevent 
property from falling into decay, a tenant may sometimes 
compel the others to join him in doing the needful work, or, 
perhaps, after proper notification, make the repairs himself 
and sue the others for their share of the charges. 

DIVISION OF RENTS OR PROFITS. 

Inasmuch as each joint tenant has an undivided interest 
in the land, it is plain that he may occupy the land and take 
his family there with him, and yet not be chargeable with 
rent of the premises; he is merely enjoying his ownership. 
Of course there might be a special agreement between the 
several co-tenants, by which it was provided that one of them 
should go upon the land and pay the others rent therefor. 
Such an agreement would be enforceable. 

TAKING FARM PRODUCTS. 

Where one of several tenants in common of a farm keeps, 
or, with the acquiescence of his co-tenants and in the usual 



240 Joint Ownership in Lands. 

course of husbandry, takes the annual products thereof, 
where there has been no special contract with reference to 
the use of the farm and where the tenant has not been ousted 
by any of his co-tenants, he is not liable for the products 
taken, and that when he in good faith severs such products 
from the land, he becomes sole owner of them, and a co- 
tenant who came and took a part of such products away 
would be liable in an action to the one who had harvested 
them; or at least it has been so held in one state. This de- 
termination is expressed in a New York case in this manner: 

"When one of several tenants in common of a farm (all 
"being of full age) occupies it and has taken, in the usual 
"course of husbandry, the annual products thereof without 
"having entered into any contract in respect to its use and 
"without having ousted or denied the rights of any of his 
"co-tenants, he is not liable to account to them, or to any 
"one of them, for its use, or for the products so taken. 
"* * * The judgments which hold that a tenant in com- 
"mon of farming land, who, while in peaceable possession, 
"takes and uses the products which have grown while so in 
"possession, is not Liable to account for their value to his co- 
venant, rest necessarily on the assumption that he becomes 
"the sole owner of such products; for if a tenant in common 
"of a chattel uses it up or sells it for his own exclusive bene- 
"fit without the express or implied assent of his co-tenants, 
"he is liable to them for its conversion. * * * When a 
"co-tenant of such lands peaceably takes the products grown 
"during his possession, there comes a time when he is vested 
"with the sole title which cannot be later than when in the 
"due course of husbandry they are peaceably and in good 
"faith severed by him from the common estate on which they 
"were grown. If they do not then become the individual 
"property of the co-tenant who grew and severed them, it 
"is difficult to see what subsequent act he could perform 
"which would vest him with the title. Storing the hay and 
"grain in a barn would not strengthen his title, and unless 
"it becomes perfect when the products are severed, a co- 
venant out of possession can lie by and permit the one in 
"possession to rear and prepare crops for market and then 
"peaceably take them whenever or wherever he can, or, 



Joint Ownership in Lands. 241 

"under certain circumstances, of the purchaser, so long as 
"the property can be traced. This would not be a convenient 
"nor an equitable rule, and we find no authority which justi- 
ces the court in declaring it to be the legal one. The 
"plaintiff, having in the due course of husbandry grown and 
"severed the grass and oats while being with the acquies- 
cence of his co-tenants legally and peaceably in possession 
"of the land whereon they grew, became the sole owner of 
"them, and the defendants, by taking them away, became 
"liable for their value." 

Another view of this same subject is that a co-tenant may 
always take but may not always receive, that is to say, that 
a co-tenant may always sever from the land such products as 
he or his family will use, but that when he begins to sell 
products for the purpose of profit he will then be accountable 
to his co-tenants for receipts in excess of his fair share of the 
income from the land. 

ATTEMPTS TO SELL AN ACTUAL INTEREST IN THE LAND. 

It is a general rule that while there may be differences 
of opinion as to the accountability of the co-tenant for prop- 
erty which is in character largely personal, such as crops, if 
the co-tenant attempt to sell an undoubted interest in land 
he will be liable to those who hold with him. This rule would 
apply to the case of the tenant who cut down trees growing 
on his land and disposed of them. In a recent case in New 
York it appeared that several men owned as tenants in com- 
mon a tract of mountainous land, the principal value of 
which lay in deposits of trap rock, and that one of the tenants 
while in possession of the property, and without the consent 
or authority of his co-tenants, quarried large quantities of the 
trap rock which was crushed and sold at a large profit, with- 
out accounting to his co-tenants for the receipts of any part 
of the rock. The court said: 

"The stone wdiich the defendant quarried and converted 
"to his own use was a part of the freehold and, therefore, 
"was the common property of all. It was not, in any proper 
"sense, the product of the land, but was part of the land 



242 Joint Ownership in Lands. 

"itself. It did not represent the nse of the land or the rents 
"and profits, but to the extent that it was taken by the de- 
fendant operated as a diminution of the estate. If the de- 
fendant had taken valuable timber from the land and sold 
"it or converted it into lumber, there is no doubt, we think, 
"that he would be liable to account for its value to his co- 
venants. The act of taking timber and the act of taking 
"stone, whether it be trap rock or marble, cannot be differ- 
entiated so far as the question of waste is concerned. 
"Whether the stone which the defendant quarried upon the 
"land and converted to his own use be considered personal 
"property or part of the realty, he was bound to account to 
"his co-tenants for their proportion of its value." 

ADVERSE TITLE ACQUIRED BY CO-TENANT. 

It is a familiar rule that one may acquire title to land 
under certain circumstances, by an adverse possession for a 
period of time, which is usually placed at twenty years. It is 
evident that the relation of co-tenants is such that it will be 
extremely difficult for one co-tenant to show that he has 
occupied land for twenty years, adversely to the rights of the 
others interested in the property; because the possession of 
one co-tenant will be presumed to be the possession of the 
others; it will, however, occasionally happen that one co- 
tenant actually drives the others from the land and thus 
establishes and maintains an adverse holding, which the law 
will look upon as a basis for the acquirement of an absolute 
title by that co-tenant. Such instances, however, are always 
scrutinized by the courts with great care. 

ESTATES BY THE ENTIRETY. 

This is the name given to holdings of land, which have 
come down to us from the common law and are still found 
with little change in many states. In those localities in 
which an estate by the entirety is recognized, it is usually 
created by a deed made to a man and his wife. In fact, no 
persons save a man and wife can be tenants by the entirety, 
and it is commonly only by a deed to them that the estate is 
created. Let us suppose now that in a state recognizing 



Joint Ownekship in Lands. 243 

entirety, a deed is made and delivered by which land is con- 
veyed to John Smith and Mary Smith, his wife. Thereafter 
the husband and the wife will be looked upon as owning not 
merely each an undivided half interest in the land, but also 
as owning each of them, the entire property. The resulting 
estate, therefore, will closely resemble the strict joint ten- 
ancy, and the right of survivorship will adhere to the hold- 
ings. Thus, if John Smith be the first to die, his wife will 
take an absolute title to all of the property. It is manifest 
that she will not take dower, since she is going to receive all 
of the land for all time, and not merely a third for her life. 
For the same reason John Smith, if his wife be the first to 
die, will take no curtesy but will be entitled to the entire 
property. John Smith could here sell, during the lifetime 
of his wife, his share in the property. The husband's deed 
in such a case would convey a somewhat peculiar interest; 
for if the husband survive the wife, the grantee in the deed 
will eventually have all of the property; while if the wife 
live the longer, on the death of the husband the husband's 
grantee will lose all rights in the land. 

It is sometimes held if an estate be granted to John 
Smith, Mary, his wife, and John Jones, that John Smith a ad 
his wife will be looked upon as one person and that they 
together will take an undivided one-half interest in the land, 
while the other undivided one-half interest will go to John 
Jones. John Jones would be one tenant in common and the 
wedded pair would be together another tenant in common, 
while John Smith and his wife would hold as tenants by the 
entirety their undivided interest in the whole piece; and on 
the death of the husband, Mary Smith and John Jones would 
become tenants in common of the whole piece of land, with 
equal interests therein. 

EFFECT OF DIVORCE ON ENTIRETY. 

It is generally held that the result of an absolute divorce 
upon lands owned by the entirety is to make the husband and 



244 Joint Ownership in Lands. 

wife tenants in common thereafter of the property, and thus 
do away with the right of survivorship. The general rule is 
that a partial divorce has no effect upon the tenancy itself, 
simply making the husband and wife tenants in common of 
the proceeds. 



CHAPTEK XXV. 

DEEDS AND MORTGAGES. 

Requirements of a Deed— Delivery of Deed, Escrows— Kinds of Deeds 
— The Description — Metes and Bounds — Mortgages — Mortgage or 
Deed?— Assignment of a Mortgage — Sale of Mortgaged Premises- 
Fund for Payment of Mortgage — Mortgages for Future Advances 
— Equitable Mortgages — Discharge of Mortgage — Foreclosure of 
Mortgage — Recording Papers. 

A deed, as the term is used in common speech, is the writ- 
ing by which title in land is passed from one person to 
another. There are technically many deeds which do not 
relate to land, but we shall discuss here only such as convey 
interests in real estate. A deed must be written; it must be 
on paper or parchment; there must be a grantor and a grantee 
and both must be properly named ; there must be words indi- 
cating that the property is to be conveyed; the deed must be 
signed and sealed and delivered. Under certain circumstances 
it is necessary to have a deed witnessed, and for practical pur- 
poses it is always well to have the signature acknowledged 
before a notary public or other proper officer. In saying that 
a deed must be written we include printing and typewriting. 
The law insists that the deed be on paper or parchment, 
because those substances best receive and retain writing. The 
class of those who may be grantors in a deed is evidently 
somewhat limited. A rule of the common law which made 
the deed of a married woman void, has been generally super- 
seded by statutes giving married women power to convey their 
lands. The deeds of insane persons and infants are, under the 
most favorable interpretation which may be placed upon them, 
of doubtful value. The class of persons who may take land 
by conveyance, represented by the term grantee, is broader 

245 



246 Deeds and Mobtgages. 

than the class of those who may convey. A deed may be made 
either to an infant or to an insane person. 

REQUIREMENTS OF A DEED. 

Both the grantor and the grantee must be named in a way 
which will enable the court to identify them without difficulty. 
Both names should be in full, that is to say, at least as much 
as "John Smith/' or "John S. Smith/' a conveyance by or to 
J. S. Smith, or Mrs. John Smith would be of doubtful valid- 
ity. The word "grant" if used in a deed, is sufficient to indi- 
cate the intention to convey, and that word with others is 
usually employed for the purpose. It was at one time unnec- 
essary that a deed should be signed, the execution being accom- 
plished by affixing a seal. The ability to write has now 
become so general that the law has decided that deeds must 
be signed, though of course the signature may be made by 
illiterate persons in the form of a mark. In such a case the 
deed should be exhibited and read over to the illiterate person 
who should then affix his mark. It is well for the person who 
has read over the deed to the illiterate, both to sign the name 
for the illiterate, and to act as a witness for the deed. In such 
a case, then, the one who had read over the deed would write 
on it the name pi the man who had made the mark in such a 
way that the mark would come between the given name and 
the last name and then write above the mark the word "his" 
and under the mark the word "mark." The signature would 
then read: 

his 

John X Smith 

mark 

Then the person who had written in the name should add 
his own name as a witness. If it should happen that the 
grantor were paralyzed, or for some other reason unable to 
make his mark, the signature, if written by his direction and 
in his presence, would be sufficient. "Where a deed is signed 
by an agent, the power of attorney should be in writing, under 



Deeds and Mortgages. 247 

seal, and the signature should read "John Smith by John 
Jones, his attorney." If the deed were signed "John Jones, 
attorney for John Smith," it might be considered by the law 
as the personal deed of Jones. The seal may be put on by any 
one, if it is done by the direction of the signer. A wafer is 
the best seal. In some states a scroll of the pen or the writing 
in of the letters "L. S." is sufficient. 

DELIVERY OP DEED, ESCROWS. 

The ordinary method of delivery of a deed is by a transfer 
from the grantor to the grantee. Sometimes the deed is deliv- 
ered in escrow, which means that the paper is placed in the 
hands of a third party to hold until some condition is per- 
formed. Then when the deed is delivered by the third party 
to the grantee, it may take effect from the time when the deed 
was placed in the third party's hands, though there are excep- 
tions to this rule. 

KINDS OF DEEDS. 

Though the law at one time or another has recognized a 
great variety of deeds, only three are in general use to-day. 
They are the warranty deed, the quit-claim deed, and the quit- 
claim deed with a warranty against the acts of the grantor. 
The full covenant and warranty deed, as the warranty deed 
in its completeness is called, is the best kind of conveyance 
which the grantee may obtain, and the most disadvantageous 
conveyance for the grantor. In such a deed the grantor 
practically enters into a series of contracts which will render 
him liable to the grantee or those who come after, in case the 
grantor was not the owner of the property at the time the 
conveyance was made; in case he did not have a right to con- 
vey; in case there are incumbrances on the property, or in 
case there shall be a disturbance of the new occupant by some 
person who has a title better than that of the grantor. There 
is one covenant that the grantor is seized of the premises and 
another that he has right to convey, because it might happen 
that a grantor would be seized of premises, but only in his 



248 Deeds and Mortgages. 

capacity as trustee, and that under the circumstances lie would 
not have a right to convey. At the other end of the scale 
from the full covenant and warranty is the quit-claim, which 
is the poorest deed for the grantee, and the most advantageous 
for the grantor. The quit-claim deed merely disposes of such 
interest in the land as the grantor may have. It often hap- 
pens that where it is not certain whether a man has any in- 
terest in a piece of property or not, for the purpose of clear- 
ing up the title, he gives a quit-claim deed. Then if he have 
a title to the premises, the deed is a good conveyance; if, on 
the other hand, he have no interest therein, no right of action 
against himself will result. Between the warranty and the 
quit-claim comes the quit-claim with warranty against the 
acts of the grantor, which, as its name implies, is simply a 
quit-claim with an added provision that the grantor has not 
done anything to injure the title coming to the grantee. 
There are other covenants in the full covenant and warranty 
deed, but we have spoken of the more important ones; there 
are also several other deeds in occasional use, as for example, 
the bargain and sale deed. 

THE DESCRIPTION. 

To convey title to land the word "land" or its equivalents 
should be used. To convey water, as for example, a pond, 
the land covered by the water would be described, and it is 
not necessary to refer in any way to the water, though in 
such a case, the words "covered by water" are frequently 
added. A grant of a stream or a pond without reference to 
the land covered might not carry the land, but merely certain 
water privileges. The description of a deed should always be 
drawn with great care. It is well both to have a recent sur- 
vey of the premises, and also to incorporate in the description 
a reference to some other deed by which the same prem- 
ises have been conveyed. This gives a double check on 
errors. 



Deeds and Moktgages. 249 

metes and bounds. 

The custom of describing a lot as running, for instance, 
from a fence to a stump and from the stump to an apple tree 
and from the apple tree to a blazed tree and from the blazed 
tree back to the fence, though sufficient in law, is the cause 
of frequent litigation. While these marks may be plain 
enough at the time the deed is made, it is clear that fifty or 
a hundred years later, the reference to the stump and the 
blazed tree will be of little value. The safer and better way 
to indicate the outlines of a description is to fix one point at 
least by an enduring natural monument or from the neigh- 
boring lots, and then to describe the property conveyed by 
measurement and direction, based upon a survey. The rule 
is that the least certain and material parts of a description 
must yield to those that are most certain and material. Visi- 
ble, known, and fixed boundaries referred to in a deed, con- 
trol' quantity, courses and distances when they conflict. Some 
visible boundaries afford an excellent starting place, as for 
example, a stone monument, or even a spring. A river is 
more open to objection as a boundary mark, as it is liable at 
any time to change its course. As a general rule, land 
bounded by a stream above tide water which is not navigable, 
is bounded not by the bank but by the middle or thread of 
the stream. It is generally held that if lots are conveyed by 
descriptions bounding them "by" or "along" roads or streets 
in which the grantor has an interest or estate, the grantees 
will take the land in front of their lots to the center of the 
streets; and this rule applies both to rural and city property. 
Where, however, the land is measured by feet in such a way 
as to exclude the street, or is bounded by a specific side of the 
street, the rule is different, and no right in the street is con- 
veyed. 

MORTGAGES. 

In the old days a mortgage was looked upon as a convey- 
ance of land which might be defeated by the subsequent pay- 



250 Deeds and Mortgages. 

ment of the debt secured. This is still the theory in some 
states; in others, though, the mortgage continues to be in 
form a deed with a clause providing that it shall not be en- 
forceable if the money be paid; nevertheless, the law looks 
upon the paper not as a deed but simply as a lien upon the 
land. The mortgage is usually accompanied by a bond or 
some . other evidence of indebtedness, and the bond is cus- 
tomarily made for twice the amount of the debt, but on de- 
fault the mortgagee may collect from the persons signing the 
bond only what is actually due him, together with his costs 
and disbursements. The obligation accompanying the mort- 
gage is sometimes a promissory note. In most states an 
action on the bond could be brought at any time within 
twenty years, while the right of action on the note might be 
lost after six years. 

MORTGAGE OR DEED? 

Though the great majority of mortgages are drawn in the 
method which by long usage has become familiar to owners 
of land, this form is not prescribed by the law, and it will 
frequently happen that a paper in the form of a deed is de- 
clared by the law to be in reality a mortgage. It is some- 
times said that the law will, other things being equal, prefer 
a mortgage to a deed. If at the time the doubtful instru- 
ment is executed, the grantee give up securities, or if the 
consideration be inadequate, or if the possession of the land 
still remain in the apparent grantor, these things may all, 
if unexplained, indicate a mortgage rather than a deed, 
though as to third parties a paper in the form of a deed 
would no doubt be considered a deed. After a mortgage is 
foreclosed it is not stricken from the records, but stands upon 
them as a deed, dating from the time it was made, and thus 
cutting out any subsequent conveyances or liens. 

ASSIGNMENT OF A MORTGAGE. 

"When a mortgage is assigned, it is well for the person 
who is to take it to have the title examined, not only to the 



Deeds and Mortgages. 251 

time of giving the mortgage but also down to date, to show 
the present owner. The assignment should be drawn up in 
the same general form required by a deed and acknowledged 
before a notary, and it should be promptly recorded. The 
mortgagor, or the person who is paying interest on the mort- 
gage, should receive prompt notice of the assignment, the 
best method being by a letter personally delivered. 

SALE OP MORTGAGED PREMISES. 

"When mortgaged property is sold, the grantee should see 
that the deed provides that he is to take under the mortgage, 
but not that he is to assume it. Where the purchaser takes 
under the mortgage he has no personal liability for the 
mortgage debt, though he may of course lose the land on the 
foreclosure. On the other hand, if the purchaser assume the 
mortgage, he will be looked to to pay the debt, even though 
the land is not sufficient therefor. 

FUND FOR PAYMENT OF MORTGAGE. 

It is said that the land is in all cases the primary fund for 
the payment of the mortgage. This statement may be illus- 
trated as follows: Suppose a man died leaving mortgaged 
land and money in the bank, and that his heirs, or those who 
would take his real property, were not the same persons as 
his distributees, or those who were to take his personal prop- 
erty. It is evident that the money in the bank will go to 
the distributees and the land to the heirs. Then a question 
may arise as to who is to pay the mortgage debt. It would 
be generally said to-day that the land must be first sold for 
that purpose. Of course if the land did not bring enough to 
satisfy the debt, there might still be an action on the bond 
against the distributees, in so far as they had received money 
from the estate. 

MORTGAGES FOR FUTURE ADVANCES. 

A builder often gives a mortgage on property, which pro- 
vides that he shall have a small loan on the land itself, a 
larger one when the foundations are laid, and a further in- 



252 Deeds and Mortgages. 

crease when the roof is in place; or the provision is of this 
general character. Suppose now that in such a case, after the 
building is started but before the foundation is laid, a second 
mortgage on the premises is given to a stranger. Then the 
additional advance is made by the first mortgagee when the 
foundations are laid, and a dispute arises between the first 
mortgagee and the mortgagee under the second mortgage. It 
is plain that the original advance made on the land itself un- 
der the first mortgage, must first be paid, but the question 
will be as to whether the second sum advanced under the first 
mortgage will have priority of lien over the sum advanced 
under the second mortgage. The rule cannot be stated posi- 
tively because of the different opinions which prevail in the 
several states. The better view is, perhaps, that if the obli- 
gation to make subsequent advances under the first mortgage 
be purely optional, those advances, when made, will be post- 
poned to earlier advances made under a second mortgage, 
but if it do not appear in the mortgage to secure future ad- 
vances that these future advances are to be optional, the first 
mortgage will have priority of claim for the whole amount 
advanced thereunder. 

EQUITABLE MORTGAGES. 

The law recognizes some mortgages which are not direct- 
ly evidenced by an instrument in writing. For example, if 
property were sold and the money agreed for in the deed 
were not paid, this default would raise a mortgage in equity 
for the purchase price, which could be foreclosed for the ad- 
vantage of the seller of the property, much as is any other 
mortgage. A valid contract for a mortgage is sometimes 
recognized by the law as an equitable mortgage. 

DISCHARGE OF MORTGAGE. 

A mortgage may of course be discharged by payment or 
release. Sometimes a tender of the amount due under the 
mortgage at the proper time and place will discharge the lien 
of the mortgage, although it may not dispose of the indebt- 



Deeds and Mortgages. 253 

edness evidenced by the accompanying bond. Sometimes a 
mortgage is unenforceable because so long a time has passed 
that the statute of limitations prevents its foreclosure. Some- 
times a mortgage is merged or drowned. If the ownership 
of land and the ownership of a mortgage on that land are 
found in the same person in the same right and at the same 
time, the mortgage will be liable to be merged and so dis- 
charged. This result often comes about without having been 
intended; as for example, where one who has two mortgages 
on a piece of land forecloses one and buys in on the fore- 
closure sale. 

FORECLOSURE OF MORTGAGE. 

"No one but a lawyer can foreclose a mortgage, as it is a 
most technical proceeding. Every person who has an interest' 
in the land subsequent to the mortgage must be brought in 
as a party to the suit, and this necessitates the examination of 
the title by the attorney. Clients sometimes complain of 
what seems to them an unreasonable charge made by an at- 
torney for the foreclosure of a mortgage. While the pro- 
ceeding is common, it is nevertheless difficult, and the attor- 
ney's fee is to compensate him not only for his labor but also 
for his responsibility. Sometimes a foreclosure may be 
avoided by securing a deed to the premises from the mort- 
gagor. In such a case the title should always be examined 
to see that no other liens have intervened; since the deed in 
such a case would not give title as of the time the mortgage 
was made, but only as of the time it was delivered. Thus it 
might happen that a second mortgage had been given in the 
meantime. The law might then hold that the first mortgage 
was merged or drowned in the title and that the mortgagee 
under the first mortgage would take the land subject to the 
lien of the second mortgage. A foreclosure action may be 
defended as is any other action, but this is unadvisable unless 
there be a good defense, as it tends to increase the costs. 
Upon the foreclosure sale the mortgagee credits on his judg- 



254 Deeds and Moetgages. 

ment the amount received for the property, and then is 
allowed to enter a further judgment, known as a deficiency 
judgment, against the signer of the bond to represent the 
difference between the sum received on the sale and the 
amount due on the bond. It is evident, therefore, that when 
land is to be sold on foreclosure it is to the advantage of the 
signer of the bond to see that it brings as much as is possible 
and thus do away with or reduce the deficiency judgment. 
Any surplus received on the sale is of course the property of 
the owners of the land. 

RECORDING PAPERS. 

It is everywhere the rule that to make a deed or mort- 
gage effective against parties other than the parties to the 
instrument, it must be recorded in the proper office. This is 
usually the office of the clerk or recorder of the county in 
which the land is situated. Thus if a first mortgage were not 
recorded until after a second mortgage on the same piece of 
land had been placed on record, the second mortgage would 
probably take precedence over the first. There is one gen- 
eral exception to this rule, to the effect that a person in occu- 
pation of land need not record the instrument under which 
he claims, though it a safer plan for him to do so. Thus in 
buying a piece of land it is always well not only to have the 
title searched for incumbrances which are of record, but also 
to have inquiry made of the occupants of the place, to deter- 
mine whether any one of them has an unrecorded claim 
against the property. 



CHAPTEE XXVI. 

LANDLOKD AND TENANT. 

Tenancies of Various Sorts— Tenants at Suffrance — The Tenant's 
Duties — The Landlord's Duties — Damage by Fire — Sub Leases — 
Summary Proceedings — Injury to Strangers. 

A lease of real property need not contain any particular 
words, so long as the intention of the lessor to transfer the pos- 
session of the land during a certain determinate period is 
shown. The usual words are "lease, demise and farm-let." 
The only safe plan is always to have the lease in writing. A 
lease may, it is true, be made orally, for a year from the time 
of making, and in some states it is held that an oral lease for 
a year commencing at some day in the future, is sufficient. 
For a longer time, however, the provision of the Statute of 
Frauds compels a writing, and it is in general true that leases 
for more than three years, to be effective, should be under 
seal. It is well to record a lease which is written for any 
length of time, though it is not usual to put on record those 
which are merely for a year or two. As soon as a lease has 
been delivered and accepted there is established between the 
lessor and the lessee a relation known as that of landlord and 
tenant. 

TENANCIES OF VARIOUS SORTS. 

The ordinary lease gives to the tenant a right to the pos- 
session of land for a definite time, and the estate or interest 
resulting to the tenant is known as an estate for years. It is 
not necessary that the right under the lease actually be for a 
year, as an estate for five years, an estate for one year, and an 
estate for two months are all indifferently known as estates 
for years. When the tenancy is determinable at the will of 
either party, the resulting interest is known as an estate at 

255 



256 Landlord and Tenant. 

will. These estates at will have never been favored by the law 
because of their uncertain tenure, and because of the frequent 
arbitrary and sudden determination of them by both landlords 
and tenants; it has come to be the rule in most cases that even 
in an estate at will a certain notice must be given to deter- 
minate the relationship, and in some states this notice is 
placed at thirty days; moreover, the law shows a tendency to 
change estates at will into interests of a peculiar character, 
known as estates from year to year, as estates from month to 
month, or even as estates from week to week, the duration 
being regulated by the manner of payment of the rent. If, 
for example, a tenant at will had for some time paid his rent 
each month, with the acquiescence of the landlord, the law 
would hold that the estate at will had become a tenancy 
from month to month. It is generally held that a notice 
must not only be given for a certain length of time before the 
estate is to terminate, but also that an estate may terminate 
only at the expiration of one of the regular rental periods, 
that is to say, at the end of the year, quarter or month. Gen- 
erally speaking, such a notice must be served on the tenant 
personally or left at the tenant's dwelling house with a person 
who has reached years of discretion. 

TENANTS AT SUFFERANCE. 

When a person who has come lawfully into the possession 
of lands under an agreement, remains after his right is ended, 
he is said to be a tenant at sufferance; as a matter of fact, he 
has no right to possession, nevertheless, he is not looked upon 
as a trespasser. Thus, if a piece of property were leased to a 
man for a year, his remaining after the expiration of that 
term would ordinarily make him a tenant at sufferance, 
though the tendency in some states would be to look upon his 
holding over as a renewal of the lease for another year. If the 
landlord desire to end a tenancy at sufferance he should give 
notice and also enter upon the land. As long ago as the reign 
of King Richard II. of England, a statute was passed forbid- 



Landlord and Tenant. 257 

ding entries upon land "with strong hand or multitude of peo< 
pie." Not only has this statute been re-enacted in most of 
our states, but in many of them the quaint wording of the old 
law is preserved. It is clear, therefore, that a landlord has 
no right forcibly to dispossess a tenant, however unlawful the 
tenant's holding may be. In such a case the landlord must 
apply for relief to the courts. 

THE TENANT'S DUTIES. 

The duties of a tenant under a lease do not differ sub- 
stantially from the duties of a life tenant. The tenant under 
a lease must pay rent, he must refrain from waste and he must 
keep the property in repair. It is generally said that a tenant 
from year to year should keep the premises wind and water 
tight, while a tenant for years should keep the premises in 
substantial repair. The duties of a lessee to pay rent and to 
refrain from waste are generally understood, but it is popu- 
larly supposed that the landlord is liable for repairs. This is 
a mistake. There is, of course, nothing to prevent an agree- 
ment in the lease by which the landlord binds himself for 
repairs, and, apart from that, the great majority of landlords 
are willing enough to make necessary repairs, in order to 
retain desirable tenants. Specific agreements may be embod- 
ied in the lease with reference not only to this question, but 
also to many others. 

THE LANDLORD'S DUTIES. 

Apart from special obligations assumed by the landlord in 
the lease, his duties may be said to consist in giving the tenant 
what is known as "quiet enjoyment of the premises," which 
words as used in law, indicate freedom from interference, 
either by the landlord or by any person who claims under the 
landlord or who has a title to the land better than the land- 
lord's. If a tenant is driven off the land by a stranger who 
has no title or interest therein, the tenant can make no claim 
against the landlord. His action is against the intruder. If, 
on the other hand, the tenant were driven from the land by 



258 Landlord and Tenant. 

the landlord or by some one claiming under the landlord, or 
by some person who had a title better than the landlord, the 
law would call this intrusion an "eviction," and the landlord 
would be responsible to the tenant. The only way in which 
a person having a title better than the landlord's can dis- 
possess a tenant of his property is by what is known as an 
actual eviction: that is to say, it would be necessary for the 
new claimant to drive the tenant bodily from the premises, 
clear the land of the tenant's property, or the like. The 
eviction by the landlord or those who claim under him, may, 
on the other hand, be either the actual eviction, of which we 
have spoken, or it may be constructive. To illustrate what 
is meant by constructive eviction, suppose that a watch- 
maker rented a room in a building, for the purpose of plying 
his trade, and that the landlord thereupon erected another 
building upon the premises in such a position as to cut off the 
watch-maker's light, and then rented the new building to a 
factory which filled all the surrounding air with dust; it is 
evident that the watch-maker could not follow his trade in 
such surroundings, and the law would hold that there had 
been a constructive eviction by the landlord. If the owner 
of a building leased one half to a respectable family and the 
other to a bawdy house, it would be held that the respectable 
family had been constructively evicted. It seems to be the 
rule that where there is an actual eviction by the landlord, 
the tenant is freed from paying rent, even though he stay on 
the premises. Thus, if a landlord came to his tenant's resi- 
dence and placed the latter's household goods on the street, 
the tenant could in most states take the goods back again 
and remain for the rest of the term, or until driven out bv 
the landlord, without payment of rent. On the other hand, 
if the tenant claims a constructive eviction, he must, in order 
to escape further payment of rent, actually leave the prem- 
ises. So, in the case cited, the watch-maker to make good 
his claim, would be obliged to vacate his room. It must not 
be supposed from what has been said that a landlord has a 



Landlord and Tenant. 259 

right to evict a tenant, either actually or constructively; in 
either case the landlord is liable not merely to a loss of rent, 
but also to an action for breach of contract. 

DAMAGE BY FIRE. 

It is now generally held that if a house is destroyed or 
rendered uninhabitable by fire or other action of the ele- 
ments, rent need not be paid for the house thereafter. This 
rule does not apply to the case of a house becoming uninhab- 
itable by ordinary wear and tear, since the tenant was bound 
to guard against this result. 

sub-leases 
A lease usually contains a provision that the property 
must not be sub-let without the consent of the landlord, and 
this is of course a wise provision, because the landlord does 
not wish to have his property occupied by persons who are 
unknown to him. Where a sub-lease is made, the sub-letting 
does not free the original tenant from his liability for rent. 
Oftentimes a tenant obtains from the landlord the necessary 
consent to sub-lease, and then, coming to the landlord, desires 
to be freed himself from further liability under the lease. 
Under such circumstances the landlord must be on his guard, 
because it may be held that he has no claim on the sub-tenant. 
The courts usually take the position that if the entire interest 
or estate of the tenant is turned over to the sub-tenant, the 
landlord may recover from the sub-tenant, who then becomes 
an assignee. By the words interest or estate, as here used, 
is meant, not the land itself, but the period; for example, if 
the lease were for ten years, and the property for all the 
remainder of that term were passed over to the sub-tenant, 
there would be an assignment, but if the arrangement were 
that the tenant was later to receive the property back and 
enjoy the last part of his term, there would be no assignment 
and no liability on the part of the sub-tenant. The land- 
lord's only safety lies in refusing to release the original ten- 
ant, unless fully satisfied of the responsibility of the sub- 



260 Landlord and Tenant. 

tenant, and then in taking a new lease in writing from the 
sub-tenant. 

SUMMARY PROCEEDINGS. 

In every state there are statutes providing for a rapid 
method of dispossessing a tenant who has not observed the 
terms of the lease. The most common reason for such an 
ouster is the failure of the tenant to pay his rent. The 
statutes in the several localities vary so greatly that they 
cannot be described here, further than to say that, in general, 
a tenant in arrears may be ejected from property in the 
course of a week, and under certain circumstances, even 
within twenty-four hours. These proceedings are commonly 
begun before justices of the peace, who are familiar with the 
practice in such cases and usually have in their possession the 
necessary blanks for preparing the papers. The warrant dis- 
possessing a tenant should be served by a constable, and here f 
as everywhere else, it is dangerous for the landlord to 
attempt to take the law into his own hands. 

INJURY TO STRANGERS. 

If a landlord make a lease of premises known by him to 
contain a nuisance, the landlord may be held responsible for 
an injury resulting therefrom to a third party. Sometimes 
the tenant may also be sued for allowing the nuisance to 
remain. If a landlord placed proper appliances on the land, 
but they were allowed to become defective by the. tenant's 
negligence, the tenant would be responsible for injuries there- 
from to outsiders. Again, if the landlord knowingly leases 
premises for illegal purposes, he is responsible. This is not 
true, however, if the land is so used by the tenant without 
the landlord's knowledge. 



CHAPTEE XXVII. 
CROPS AND CROP CONTRACTS. 

Farming on Shares — Legal Status of Crops — Landlord and Tenant — 
Title to the Crop in the Tenant — Mortgagor and Mortgagee- 
Master and Servant — Tenants in Common — Principal and Agent — 
Partners and Joint Tenants — Buyer and Seller — Avoiding Legal 
Complications. 

Contracts concerning crops or the proceeds of crops, 
usually termed contracts for "farming on shares," are given a 
special chapter, because this most common and apparently 
simple arrangement, often undertaken without any written 
agreement whatever, and even when the agreement is in writ- 
ing, as often made between men who have no legal knowledge 
or training, is a most prolific source of litigation, and the 
rights and obligations arising from it are various and fre- 
quently complicated. 

An agreement by which two or more persons are to share 
in the proceeds of crops, growing or to be planted, may result 
in forming between them any one of seven differing legal 
relations. The contracting parties may be either: 

1. Landlord and tenant. 

2. Mortgagor and mortgagee. 

3. Master and servant. 

4. Tenants in common. 

5. Principal and agent. 

6. Partners or joint tenants. 

7. Buyer and seller. 

FARMING ON SHARES. 

The legal relations between the persons who are to share 
in the proceeds of crops are determined entirely by the nature 
of the contract between them. This contract should usually 

261 



262 Crops and Chop Conteacts. 

be in writing in order to give it legal validity, and as a matter 
of common sense it should always be in writing in order to 
preserve the rights and fix the liabilities of the respective 
parties. It should be drawn with care and with a knowledge 
of the relation which it proposes to create. In many instances 
it should not only be in writing but should be duly acknowl- 
edged and recorded. 

LEGAL, STATUS OF CROPS. 

Before considering these several contracts and the legal 
relations arising from them, it would be first well to obtain an 
understanding of the legal nature of the property the contract 
is about. As we have already seen, crops are on the border 
line between the class of property known as real and that 
known as personal. Natural products, such as fruit on trees, 
the trees themselves, and natural or wild grasses, are usually 
classed as real property. They are the gifts of nature and not 
in the strictest sense the fruit of industry. On the other hand, 
annual crops, such as wheat, rye, corn and the like, in fact, 
any "crops" in the strict sense of the word, are usually classed 
as personal property. They pass from buyer to seller or from 
lessor to lessee, however, along with the real estate, unless spe- 
cifically reserved in the deed or lease, and in this sense they 
are appurtenances of the real property. But in all other 
respects they bear the elements of personal property. While 
growing they may be bought and sold, mortgaged and in- 
sured, levied upon by the sheriff or in other ways made the 
subject of a lien. 

Where crops are planted by a tenant who knows when his 
term is to expire and they are not harvested when his term 
ends, they belong to the landlord, as the tenant should not 
have planted them under the circumstances. The rule is the 
other way if the tenant's term was uncertain and ended unex- 
pectedly. 

Whether crops can be mortgaged before they are planted 
is a question about which all of the courts are not agreed; but 
it is certain that unplanted crops are in any event the subject 



Crops and Ceop Contracts. 263 

of contract, and in most jurisdictions the mortgage becomes 
valid after the seed is planted as against the person making it 
and all who have notice of its existence. The cause of the 
difficulty is the general rule of law that a man cannot mort- 
gage or sell that which does not exist. He may, however, 
agree to mortgage or sell it when it does come into existence, 
and when the agreement is so far performed that the crop is 
actually planted and growing, a mortgage or bill of sale then 
executed would be without question valid, if properly drawn, 
acknowledged and recorded. 

"We are now in 1 a position to consider the various legal 
relations to which a contract for farming on shares may give 
rise. 

LANDLORD AND TENANT. 

A mere agreement that a farm is to be worked on shares 
does not create the relation of landlord and tenant unless that 
is the intention of the parties and such intention is clearly 
expressed. There must be words employed which constitute a 
letting of the property and the payment of either so many 
tons of hay, bushels of oats, etc., as rent, or a certain fraction 
of the entire crop as rent. When the agreement is in such 
form that a letting of the premises to be farmed takes place, 
the right to the possession of the land passes to the tenant, and 
all the rights and obligations of tenant and landlord arise. The 
tenant may be removed by summary proceedings if he holds 
over after his term is up or fails to turn the landlord's share 
of the crop over to him as rent. Should the tenancy termi- 
nate for any reason not amounting to the abandonment or 
revocation of the contract on the part of the tenant, he is enti- 
tled to the crop, and has a license to enter and harvest it. In 
case of his death the same right falls to the representative of 
his estate. 

"Where the contract expires and the crops have been 
planted but not harvested, the tenant has no right to enter 
and take them if the time when the lease expired was fixed 
and certain, and the tenant knew that he would have no right 



264 Chops and Crop Contracts. 

in the place by harvest time. This is a matter usually regu- 
lated by the contract, but in its absence the tenant has no 
right to the crop under the circumstances. 

In such contracts it is customary to insert specific agree- 
ments as to the manner of cultivation, otherwise the tenant 
is left to his own choice so long as he fulfills the covenant 
implied in all leases of agricultural property that the tenant 
will conduct the farm in a husbandlike manner and accord- 
ing to the customs of the country. If such implied agree- 
ment were violated, and the violation amounted to a serious 
injury to the farm, the landlord could prevent such wasteful 
proceedings by injunction. 

TITLE TO THE CROP IN THE TENANT. 

The title to the entire crop is in the tenant until there 
is an actual division and delivery. If destroyed before divi- 
sion, the loss is his. The specific share given to the landlord 
is simply in the place of money for the rent, and the duty to 
pay it is simply a debt for rent. The crop itself belongs to 
the tenant and he may sell all of it and give good title to the 
purchaser. He may mortgage it or use it up. He has done 
nothing criminal. He has simply broken his contract. His 
creditors may seize the crop on execution, and the landlord 
would have no rights in it as against them. 

These various hazards lead sometimes to the insertion of 
provisions in such leases that the title to the crop shall 
remain in the landlord. This is well enough as far as the 
parties themselves are concerned, and is probably effective 
against the rest of the world, but the landlord usually feels 
still more secure if his rights are protected by a chattel mort- 
gage, or the insertion of a chattel mortgage clause in the 
lease. Such a mortgage, of course, creates a new legal rela- 
tion in addition to that of landlord and tenant. 

MORTGAGOR AND MORTGAGEE. 

A lease for the payment of rent in a share of the crop 
and a chattel mortgage clause inserted should, of course, be 



Crops and Ceop Conteacts. 265 

acknowledged and recorded, and. is subject to all of the rules 
and statutory regulations covering chattel mortgages. The 
relation of mortgagor and. mortgagee may also be created 
directly, by the giving of such a mortgage to secure money 
advanced, to a farmer, as well as where the relation of land- 
lord and tenant exists. In many of the southern states the 
statutes provide for a lien upon crops to persons who have 
advanced money in this way, and such a lien must usually be 
recorded in the same way as a chattel mortgage, but it is a 
much better and safer security. 

"No chattel mortgage or lease with chattel mortgage 
clause should be drawn without legal assistance. The lessor 
must be careful to specify all of the property or produce upon 
which he desires to secure a lien. For instance, if he refer 
only to hay and butter, he gets no lien on the grain. The 
mortgage must provide that the property is sold to the per- 
son lending the money or desiring to secure the rent, but 
that if the conditions are performed, as the repayment of 
the money or the payment of the rent, the sale shall be void 
and of no effect. Such an instrument, to avoid the rules 
against fraud in conveyances, must provide that the proceeds 
of any sales of the property shall be turned over to the land- 
lord, and must avoid any arrangements which permit the ten- 
ant to treat the property as his own while it is in his posses- 
sion. He cannot go on and use the property as his own with 
the landlord's consent, without invalidating the mortgage. 

MASTE1R AND SERVANT. 

The serious difficulties and hazards to the landlord aris- 
ing out of a contract for working a farm on shares, which 
brings about the relation of landlord and tenant or of mort- 
gagor and mortgagee, make the courts loath to interpret con- 
tracts in that way unless the intent is clear on the part of the 
contracting parties. On the other hand, the agreement by 
its terms, may be simply for the farmer to employ help to 
work the farm and pay such help with a share in the crop. 



266 Crops and Crop Contracts. 

Such a bargain does not make the help tenants of the 
employer. They are on the place at all times merely by his 
leave and license. They have no right of possession in the 
land nor any title to the crop until their share of the latter 
is actually set apart and delivered to them. The land is the 
employer's and the whole crop is his. If he fails to pay the 
share of it due the employee, there is no remedy but a suit 
for the value of his share. In appropriating the crop to his 
own use the master has done nothing criminal. He has 
merely broken a contract. He may sell the whole crop and 
use the money. His creditors may seize it. On the other 
hand, should it burn up or be otherwise destroyed or stolen 
after harvesting and before division, the loss would all be his 
and his debt to the laborer would remain. The employer 
would be liable for any negligence of his employee under the 
ordinary rules of negligence, and all of the legal results of 
the relation of master and servant elsewhere considered 
would arise. In some states the farm laborer or "cropper," 
as he is sometimes called, has a statutory lien on the crop for 
his services. 

TENANTS IN COMMON. 

The contract of landlord and tenant for the working of a 
farm on shares has so many elements of hardship to the pro- 
prietor on the one side ; and that of master and servant to the 
laborer on the other, that the courts will construe the con- 
tract to create neither of these relations where there is any 
reasonable doubt about it. "Where the language used will 
permit it the agreement will be held to create the relation 
of tenants in common of the crop. By this agreement each 
party is the owner of an undivided one half of the crop as 
soon as planted. The planter is not an employee or a tenant, 
though he is frequently the agent of the proprietor. Under 
these circumstances neither party has it in his power to give 
title to more than his undivided share. Neither the fault 
nor the misfortune of the one can defeat the rights of the 
other. If the crop is destroyed, the loss falls on both. The 



Crops and Ceop Contracts. 2G7 

laborer, while not a tenant, has a license to enter upon the 
property and take his share away. The creditors of neither 
party can gain an advantage by levying on the crop before 
harvesting and division. 

But the contract must be carefully worded to avoid still 
other legal relations usually undesirable in such a case. 

PRINCIPAL, AND AGENT. 

Even where there is a tenancy in common of the crop, as 
above described, it is scarcely possible to avoid the creation 
of the relation of principal and agent in the course of the 
transaction -of the business in which there is a mutual inter- 
est. Some one must buy the seed, hire help, care for the 
stock, and in all of these matters each is the agent of the 
other in the transaction. The relations of principal and 
agent are carefully considered in another chapter. But it 
often happens that while supposing that they have merely 
entered into an agreement to work a farm on shares, the con- 
tracting parties find, when trouble arises, that by their acts 
and the form of their agreement they have unwittingly 
become partners in a business enterprise, and joint tenants in 
the crop. 

PARTNERS AND JOINT TENANTS. 

If the arrangement is that each shall furnish a share of 
the capital, tools, seed, stock, or labor, that each shall bear 
a proportionate share of any loss that may befall and share 
proportionately in the profits of the farm, after all expenses 
have been paid, the contracting parties have become joint 
tenants of the crop and partners in the enterprise. Either 
one may sell the whole crop and appropriate the proceeds to 
his own use. If he spend all of the money and never account 
for a cent of it, he will have committed no crime. His part- 
ner has the right only to sue him for an accounting in the 
civil courts. Each is personally liable for the debts of the 
other incurred in the natural course of the business. In fact, 
such an agreement is subject to all of the advantages and dis- 
advantages of any other co-partnership arrangement. 



268 Chops and Crop Contracts. 

buyer and seller. 
All or any portion of a growing crop may be bought and 
sold. After the purchase the crop must be harvested and 
divided, and meanwhile the peculiar situation of working a 
farm on shares remains. If there is no further agreement 
than that of sale and delivery the parties become tenants in 
common of the crop, and the seller is the agent of the buyer 
until after harvesting. As between the parties any written 
memorandum of the sale is legally sufficient, but as there is 
a change of title without a change of possession, a bill of 
sale should be drawn and recorded in order to protect the 
purchaser against any intervening rights of third parties. 

AVOIDING LEGAL COMPLICATIONS. 

If it is the intention to make a contract simply and solely 
to farm on shares and to make the parties own half of the 
crop at the start, without creating any other legal relation 
except that possibly of a limited agency, to have each share 
liable only for its owner's debts and subject to his power of 
sale only, the contract should say so in plain English, and 
the parties thereto should carefully avoid the use of any 
words implying a lease, on the one hand, an employment, on 
the other, words implying that the interest of either is to be 
in the profits of the enterprise, rather than in the crop itself, 
after the payment of losses and expenses. 

In any event, it is advisable to know just what is being 
done when the contract is made, for a loose method of doing 
business of this sort is almost certain to result in loss and 
expensive litigation sooner or later. If a tenancy is to be 
created the landlord should know his rights and protect 
them; if an employment, the employee should look after 
his interests; or, if a co-partnership, both parties should be 
protected by a properly drawn co-partnership agreement. 



CHAPTEE XXVIII. 

DISTRIBUTION OF PROPERTY AT DEATH. 

Estates of Intestates— Where there is a Will— A Short Test of Ca- 
pacity — How to Make a Will — Undue Influence — Effect of Subse- 
quent Marriage — Error — Familiar Testamentary Terms — Legacies 
— Legatee as Witness — Afterborn Children — Gifts to Charities — In- 
heritance Taxes. 

One of the chief incentives to acquire property is that we 
may leave those whom we love comfortably provided for when 
we die; and yet, it is only by means of the consent of society 
that this may be. There is no right of control which we may 
exercise over our material goods when we are in our graves. 
If the living world agreed that the property of decedents 
should revert to the state, the dead world would not be in a 
position to complain or to interfere. It rests, therefore, upon 
the lawmakers to say what shall be done with property when 
a man dies. If he leave no will, as we shall see, his estate is 
distributed as the statutes of his particular state direct. If he 
make a will he must make it in the manner and form which 
are prescribed by the laws, and if he fail to do this, his wishes 
as to the distribution of his property will be of no avail. Before 
the property passes from the dead to the living, it must be 
administered in the proper court, the debts of the deceased 
must be paid, and any taxes which the state chooses to impose 
while the property is thus passing to persons who have had no 
part in accumulating it must be paid. These inheritance 
taxes in recent years have been made a large source of rev- 
enue both to the state and national governments. 

ESTATES OF INTESTATES. 

When a man dies without a will he is said by the law to 
die intestate, or if a part only of his property is willed away, 



270 Distribution of Property at Death. 

he is said to be intestate as to that part which is not thus dis- 
posed of. The general rules relating to the disposition of 
property in intestacy are stated elsewhere in various chapters 
of the book; they may be summarized here: those who are to 
take the property of an intestate are separated into two great 
groups, the heirs, to whom his real estate will descend, and 
the distributees who are to take his personalty, though the 
same person is often both an heir and a distributee. We use the 
word "descend" here with reference to real property, because 
those who take real property in any other way are not heirs; 
for example, a widow who takes a life estate in real property 
by virtue of her dower right is not an heir. In place of the 
word "distributees" the law frequently uses the term "next of 
kin," which is substantially co-extensive with "distributees;" 
the latter is perhaps preferable, since a widow is clearly one 
of the distributees, but not so clearly one of next of kin. It is 
the general rule in this country that a widow takes dower and 
nothing further in the lands of inheritance owned by her hus- 
band at the time of his death ; this gives her a life interest in 
one-third of such lands. On the other hand, the interest taken 
in an intestate's personal property by his widow is always an 
absolute interest and not an interest for life, and it generally 
amounts to one-third of the personalty where there are 
children, and to a larger sum where there are no offspring. It 
is impossible to state the rules measuring the widow's share 
where there are no children, as they are probably not alike in 
any two states. In general, however, a widow without chil- 
dren takes about a half, if near relatives of the husband are 
living, and all of the property where there are no near rela- 
tives of the husband. It is commonly true that children of an 
intestate take all of his real property encumbered by the 
widow's dower right, and two-thirds of his personal property. 
"Where the intestate is a widower with children, his children 
take all of his property, both real and personal. The English 
law greatly favored the oldest son; this tendency has almost 
entirely disappeared from American jurisprudence, and here 



Distribution of Peopeety at Death. 271 

all children, male and female, share alike. It is impossible 
again to state the rules governing the inheritance of real prop- 
erty and the distribution of personal property in cases where 
a man dies intestate and without wife or child. The statutes 
in the several states show such divergences that the only 
thing to do is to consult a lawyer who is familiar with the 
laws of the state where the property concerned is situated. 
Everywhere a man's children are looked upon as both his heirs 
and his distributees; as we go further, however, in the scale 
of relationship, we find certain relatives who, while they are 
looked upon as heirs, are not necessarily distributees, and vice 
versa. 

WHERE THERE IS A WILL. 

Where the decedent leaves a will, that instrument controls 
the distribution of his property, providing it be duly admitted 
to probate. The law is lenient in determining by what per- 
sons a will may be made. It is generally true that a will dis- 
posing of real property may be made only by an adult. In 
some states, however, children who have arrived at years of 
undoubted discretion are allowed to dispose of their personal 
property by will. Thus it is held in one of the eastern states, 
for example, that a girl at sixteen, and a boy at eighteen may 
make such a will of personalty. While the law scrutinizes 
somewhat closely the ability of a signer of a contract to enter 
into an agreement, it is much more easy to convince the 
courts that a man was competent to make a will; for this there 
are perhaps two reasons; in the first place, the right to will 
away property is often almost the only privilege left to the 
very old or to the mentally infirm; secondly, while making a 
contract, one's mind is commonly opposed by the mind of 
another person, ready to take advantage of weakness; in 
drawing a will, however, the testator is supposed to be free to 
follow his own inclinations, without such opposition. So it is 
a matter of no small difficulty to show that by reason of old 
age, of drunkenness or of mental incapacity on the sane side 



272 Distribution of Property at Death. 

of lunacy, a testator was incapacitated from drawing a will. 
The books are full of cases sustaining the wills of old people, 
who were in their second childhood and weighed down with 
bodily infirmities when the instruments were signed. While 
the will of a man who had been judicially declared insane, 
would not be received by the law, the mere fact that a person 
has been declared incompetent to manage his affairs does not 
necessarily take away the right of drawing a will. It is, of 
course, understood that in each of these cases the disability 
is supposed to exist at the time the will is executed. It often 
happens that a man of sound mind draws a will and then 
becomes incurably insane; such a will will evidently outlast 
the unfortunate's life, since he is now deemed by the law 
incompetent to revoke his will, and since the will, dated from 
a time of mental soundness, will be recognized on the testa- 
tor's death as a proper statement of his intention as to his 
property. 

A SHORT TEST OP CAPACITY. 

It is sometimes said that a man to make a good will must 
understand the nature of the matter he is undertaking; be 
capable of bringing before his mind, without prompting, the 
extent and disposition of his property, and the natural recip- 
ients of his bounty; and finally be capable of holding these 
ideas in his mind long enough to reach a logical conclusion. 
It is not necessary that the conclusion actually reached 
should be such a conclusion as appears logical to the friends 
of the testator, or even to the courts, if he was at the time 
able to draw a logical conclusion. 

how to make a will. 

Don't. 

The greatest benefactors of lawyers are the men who 
make their own wills. Some do a little better and have the 
will drawn by the nearest justice of the peace. It occasion- 
ally happens, of course, that a justice of the peace is compe- 
tent to draw wills; this, however, is most unusual. The fact 



Distribution of Property at Death. 273 

that a justice is a skillful composer of deeds, of chattel mort- 
gages or even of contracts, is no indication whatever that he 
is able to draw a will. Much the cheapest plan in the long 
run, will be to have the will prepared by a lawyer of stand- 
ing and undoubted ability, and to execute it in his presence. 
Most lawyers can draw a testament which will, without slip, 
dispose of the testator's property in a simple and direct man- 
ner; that is to say, for instance, divide it among the testator's 
wife, children and friends at the time of his death. When, 
however, a testator wishes to embody in his will a direction 
that his property must not be disposed of for a certain time 
after his death, and that in the meantime it is to be held 
upon certain trusts, he is always nearing danger, and in 
drawing such wills the most skillful lawyers make frequent 
errors. Some of the provisions in the will of Samuel J. Til- 
den, one of the greatest lawyers who has ever lived in this 
country, were not sustained by the courts because he chose 
to embody therein dangerous and forbidden directions as to 
the disposition of his property. Mr. Tilden could have drawn 
one of the simple wills of which we speak, and no doubt had 
prepared during his life, scores of such wills which have been 
sustained by the law. 

Occasionally, however, a man who has made no will, finds 
himself on his deathbed, under such circumstances that it is 
absolutely impossible to summon a lawyer. The safer course 
is not to draw a will, trusting rather to the reasonable distri- 
bution of an intestate's property, which will always be made 
by the law. If, however, a will be essential, there are certain 
simple requirements which should be observed. If possible, 
let the testator himself write out a will in ink and on paper, 
naming the several living persons to whom his property is 
to pass, and the amount to go to each, avoiding all conditions 
and directions to those who are to take, and all references to 
persons not yet born. Then let him call before him three 
persons who are not mentioned in the will, and are in no way 
interested in his estate; then, while all of these three persons 



274 Distribution of Peoperty at Death. 

are before him and looking on, let the testator sign the will 
at the bottom, in their presence, and say to them, "This is 
my will, and I ask you to sign it as witnesses." Then let the 
three witnessess sign their names at the end of the will on 
the same table or board on which the testator has signed, 
and in his presence, and in the presence of each of them; 
that is to say, the testator and each of the three witnesses 
should remain together until the last name is signed. It will 
be well also for the testator to affix a seal to his will. The 
will, if on more than one sheet, should be firmly bound 
together, and it is common in such cases, to indicate in the 
will itself that it is composed of a certain number of sheets. 
It is not necessary that any part of a testator's will, except 
his signature, should be in his own writing; it is well, how- 
ever, to have all from his pen. 

UNDUE INFLUENCE. 

By the words undue influence, as used in the law of wills, 
is meant mental coercion, and not that influence which forces 
the will to yield by convincing the reasoning powers. Undue 
influence is not always sinister; for example, it once hap- 
pened that a clergyman summoned to the deathbed of a 
parishioner, caused the dying man to make an excellent will, 
which was in all respects a good disposition of his property; 
nevertheless, the court held that the will was not the act of 
the parishioner himself, but was rather the act of the clergy- 
man, who had suggested and urged its form; the will was 
held invalid, because of undue influence. In the great 
majority of cases, however, wills procured by undue influ- 
ence are by no means satisfactory, either to the natural recip- 
ients of the bounty of the testator, or to the courts. In one 
relationship of life, that of husband and wife, the law is 
extremely slow to find that there has been undue influence, 
holding that anything urged upon one spouse by another as 
to disposition of property, is more probably prompted by love 
and an honest desire to give good advice. In rare instances, 



Distribution of Property at Death. 275 

however, the courts will find that even in this relationship 
there has been an exercise of undue influence. Some years 
ago there died in New York an old man, who, though he 
could neither read nor write, had accumulated a large for- 
tune. As a widower, in the evening of life, he married a 
young woman who had been a servant in his household, and 
within the next few years, by a course of testamentary acts, 
endeavored to disinherit his children by the earlier marriage, 
in favor of his new wife and her friends. It also appeared 
that the incapacity under which he labored as an illiterate 
man, had been augmented for some time before his death by 
mental weakness; and here, on the presentation of much evi- 
dence tending to show a desire on the part of the wife to 
secure a wrongful control over her husband's property, the 
courts held the will void, because of the influence unduly 
exercised by the wife. . 

EFFECT OF SUBSEQUENT MARRIAGE. 

It is a common rule that the marriage of an unmarried 
woman who has made a will, revokes that will. In at least 
one state it has been held that a will made by a married 
woman is not revoked by a second marriage after an inter- 
vening widowhood. ISTo general rule can be stated as to the 
effect of marriage on a bachelor's will. It may be said, how- 
ever, that it is only under certain circumstances a marriage 
acts as a revocation of such a will, and that the only safe 
course to pursue is to have a new will executed after the 
wedding. 

ERROR. 

Although the courts insist upon the performance of cer- 
tain formalities at the execution of wills, they construe some- 
what liberally the body of the will itself. There is a limit, 
however, to the liberality of the courts in these matters. 
Sarah Hunt and Ann Hunt, spinsters and sisters, who lived 
together, decided some twenty-five years ago, to make their 
respective wills, the object being that on the death of either 



276 Distribution op Property at Death. 

of them, the survivor should enjoy the joint property for 
life. Two wills were prepared in the handwriting of Sarah. 
The legacies were the same in each will, save that where one 
gave a legacy to a certain charity, the other gave a similar 
legacy to another institution. After the death of Sarah, the 
two wills were found tied together in a bundle marked "the 
wills of Sarah and Ann Hunt," but when they were opened 
it appeared that each sister had executed the will prepared 
for the other. The judge expressed his regret that he could 
not give effect to the intention of the testatrix by granting 
probate to her will. 

FAMILIAR TESTAMENTARY TERMS. 

The gift of land in a will is a devise ; the gift of personal 
property in a will is a legacy or bequest. In strict speech no 
one ever inherits or takes as an heir under a will. A will is 
a disposition according to the forms of law, of property, to 
take effect at the testator's death, and in its nature revocable. 
A will must deal with property, so a paper appointing a com- 
mittee for an imbecile child and doing nothing more, is not a 
will; a paper merely appointing an executor may be a will. 
A will always takes effect at the time of the testator's death 
and not as of the time it was drawn ; for example, if a testa- 
tor devises all his real property to his brother, the brother 
would take only such real property as the testator happened 
to have at the time of his death, and would not have a claim 
on the real property sold by the testator between the time 
the will was made and his death. 

LEGACIES. 

There are three main groups of legacies, general lega- 
cies, demonstrative legacies, and specific legacies. A general 
legacy disposes of a sum of money or articles, without further 
limitation or description; as for example, "Five hundred dol- 
lars" or "Twenty books." A specific legacy disposes of a 
particular article, specially designated; as for example, "My 
white horse, Prince," "My Webster's dictionary." A demon- 



DlSTBIBUTION OF PBOPEETY AT DEATH. 277 

strative legacy disposes of money to be paid out of a particu- 
lar fund; as for example, "Five hundred dollars from my 
moneys on deposit in the First National Bank." Suppose 
that a will gave a testator's gold hunting case watch to 
one legatee, five hundred dollars out of his funds in the Sec- 
ond National Bank to each of two other legatees, and two 
hundred and fifty dollars to each of two other legatees. 
Here we have in the order named a specific legacy, two 
demonstrative legacies, and two general legacies. Now sup- 
pose it appears on the testator's death that he has lost the 
watch, that he has only five hundred dollars in the Second 
National Bank, and that the rest of his property amounts to 
only five hundred dollars more. The man to whom the watch 
was left will get nothing; the two men to whom moneys in 
the bank were left, will divide the sum on deposit, each 
receiving $250; as the legacy to each of these men, however, 
was $500, it is clear that each still has a claim for $250. But 
now we come to the claim of the two general legatees, each 
of whom is entitled to $250; therefore we have four claims 
of $250 each, which are to be satisfied out of $500. Evi- 
dently each man on this division will receive $125. There- 
fore each one of the demonstrative legatees will receive in all 
$250 plus $125, or $375, and each general legatee will 
receive $125. 

A legacy or devise is said to lapse on the death of the 
legatee or devisee, before the death of the testator. In such 
a case the property which would have been thus conveyed 
had the beneficiary lived, forms a part of the residuary 
estate and goes to the residuary legatee or devisee. There 
is an exception to this rule in most states where the benefi- 
ciary who has died was himself a descendant of the testator 
and leaves a descendant or descendants; then the legacy does 
not lapse but goes to such descendant or descendants. 

LEGATEE AS WITNESS. 

A person who expects to be a legatee under a will should 
never act as a witness to that will. It is held in some states 



278 DISTRIBUTION OF PROPERTY AT DEATH. 

that under certain circumstances such a witness would lose 
his legacy. A parent on executing his will is liable to ask 
one of his adult sons to act as a witness. This should always 
be avoided. 



AFTERBORN CHILDREN. 

When a child is born to the testator after the execution 
of a will, if no reference is made in the will to that child, the 
law generally presumes that it was not the intention of the 
testator that that child should be overlooked, and will com- 
monly grant to the afterborn child, such a share in the estate 
as it would have taken had there been no will. In other 
respects the law will be given force. Suppose, for example, 
that a testator whose entire property was eighteen thousand 
dollars in money, had two sons, with one of whom he was at 
variance. Suppose then the testator drew a will by which 
he gave nine thousand dollars to his wife and nine thousand 
dollars to the son with whom he was on friendly terms, 
entirely cutting off the second son, as he would have a right 
to do. Then suppose that after this will was executed a 
daughter was born, and that her birth was followed by the 
father's death. The daughter will now take such share in 
the property as she would have had had there been no will. 
This in most states would be one-third of two-thirds, or two- 
ninths, since the children altogether, in case of intestacy, 
would take two-thirds, and there are three children. There- 
fore, the daughter's share would be four thousand dollars. 
Deducting this four thousand from the eighteen thousand 
dollars, we have fourteen thousand dollars to be divided 
according to the will. By that instrument the property was 
halved and divided between the wife and one of the sons; 
therefore, the same proportions will now be retained, and 
the wife will take seven thousand dollars, the favored son 
seven thousand dollars, the daughter four thousand dollars, 
and the son cut off by the will, will still receive nothing. 



Distribution of Property at Death. 279 

gifts to charities. 
In most of the states there are statutes limiting the 
amount or the proportion of an estate which may be given to 
charities by testators who are survived by near relatives. 
These statutes differ so materially that they cannot be sum- 
marized here, further than to say that, in general, a testator 
with near relatives may not give more than one-half of his 
property to charity, and that gifts to certain charities must 
be embodied in wills which were made some time before the 
death of the testator. In bequeathing money to a charity, 
the testator should never content himself by giving to that 
charity in his will the name by which it is commonly known 
in the neighborhood. The attorney for the charity should 
always be requested to furnish the full corporate name of 
the body, and the property should be left to the charity under 
that name. It not infrequently happens that the popular 
name of a charity and its real or corporate name do not con- 
tain a single identical word. 

INHERITANCE TAXES. 

Inheritance taxes must now be paid on many estates of 
sufficient size to the United States government, and not infre- 
quently a second tax must be paid to the state. These taxes 
are levied on property which passes by will, upon intestacy, 
or by a gift made in anticipation of death. The tax paid to 
the United States government is only on personal property 
and has been held to apply only where the legacy to be taxed 
is as great as ten thousand dollars. Of the state taxes it may 
be said in general that real property passing to immediate 
relatives is not taxed, but is taxable when it passes to nephews 
or nieces or those farther removed, or not at all related. A 
•considerable amount of personal property may pass without 
being subject to the state tax, if it go to near relatives. In 
New York an estate in money amounting to ten thousand 
dollars and going to near relatives, is not taxable, while five 
hundred dollars or over, in real or personal property, going 



280 Distribution of Property at Death. 

to distant relatives or others, is taxable. The tax paid by dis- 
tant relatives is always heavier than that collected from the 
near relatives. It is generally held under the state laws that 
the entire amount of the estate is taxed and not merely the 
legacy; for example, if a man left eight thousand dollars in 
money to each of his two sons, and the law provided for a 
tax on ten thousand dollars or over, the share of each son 
would be taxable, because, while neither interest alone 
amounts to $10,000, both together exceed that figure. On 
receiving money from an estate the beneficiary will usually 
do well to make immediate inquiry as to whether the inherit- 
ance taxes have been paid, as heavy interest charges are the 
punishment of unreasonable delay. 



CHAPTEE XXIX. 
EIGHTS OF WAY, AND OTHER EASEMENTS. 

Easements — Easement and License Distinguished — Creation of Ease- 
ments — Reservations and Restrictions in Deeds — Party Walls. 

In this and the succeeding chapter we shall consider the 
rights which private persons or the public may acquire in 
the property of others. If, in order to reach my meadow, I 
must pass through my neighbor's orchard, and my neighbor 
permanently grant me that privilege, I have a private right 
of way through his orchard. If several other farmers in our 
neighborhood use the same road by his permission, it is still 
a private right of way. If the road be open to all, as we shall 
see in the next chapter, it becomes a public highway. But 
in all three cases the soil of the road may belong to my neigh- 
bor. The word "easement" may be found in Chaucer, and is 
probably as old as the English law, and had quite the same 
significance in England eight hundred years ago that it has 
in America to-day. But while every right of way is some- 
times loosely called an easement, every easement is not neces- 
sarily a right of way. When I sell a piece of property 
adjoining my own, I may do so on the condition that no build- 
ing shall ever be erected thereon which will obstruct my 
view. I then have an easement across the adjoining land for 
light and air, though I have no right to walk upon it or drive 
across it. 

EASEMENTS. 

An easement is sometimes defined as a privilege which 
the owner of one piece of land has over another piece of land. 
Strictly speaking, a right to fish or gather grass or in any way 
take property from land, is not an easement. The right of 
the owner of one lot to walk across his neighbor's land, is a 

281 



282 Rights of Way, and Other Easements. 

good example of an easement. Other easements are rights of 
drainage, water rights and the right to forbid a neighbor 
from building his house on his own premises in such a way 
as to damage your property. 

easement and license distinguished. 
An easement is an estate in land; a license is a mere per- 
mission to do a thing; a license is an excuse for what has been 
done under it, but it is usually revocable at any time ; while 
an easement is a property right which can no more be taken 
from a man than any other of his belongings. 

creation of easements. 
An easement is often conveyed by a deed, executed as 
any other deed of real property; this is known as an 
express grant of an easement. On the other hand, easements 
are often granted or created by implication of law. Suppose, 
for example, that A sell B a piece of land which is entirely 
surrounded by A's land. Then the law will create in B's favor 
an implied right of way across A's land to reach the highway. 
This is one of the forms of the right of way by necessity. 
The way chosen may be reasonably convenient to B and yet 
must not follow such a path as will particularly discommode 
A. B should not convey back again to A his right of way, 
trusting that the law will give him another, for in such a 
case he might find himself in a sorry plight, without any 
means of reaching or leaving his land. 

RESERVATIONS AND RESTRICTIONS IN DEEDS. 

If the owner of a tract of land sell from it a large num- 
ber of lots, all deeds containing the same restrictions, as for 
example, that no stable shall be built on the premises, each 
one of the grantees, or any person buying from a grantee, is 
held to have an implied easement in the tract, by favor of 
which he may enjoin the erection of a stable on any lot of 
the tract. It might be that after a time the courts would 
hold that the restriction had become unreasonable, because of 
the change in character of the locality, and would then refuse 



Rights of Way, and Other Easements. 283 

to grant an injunction restraining the erection of the stable; 
e^en then the courts might grant some damages, although 
allowing the stable to be built. An easement may be reserved 
in a deed, as for example, where a land owner sells a few of 
his acres and reserves a right of way over the part sold, and 
in favor of the part retained; this reservation should, of 
course, appear in the deed. If one land owner walk over his 
neighbor's farm every day for twenty years, against the 
objection of his neighbor, and without serious interference, 
he would probably obtain a right of way over that farm by 
prescription. It sometimes happens that where a building 
is built right up to the line of the lot, the owner of the build- 
ing obtains a prescriptive right to swing his shutters out over 
the neighboring lot, thus preventing any building in the 
future on that neighboring lot which would interfere with 
this privilege. The way to avoid the obtaining of a pre- 
scriptive right is to insist that the person who is likely to 
secure it shall pay some nominal sum for the privilege; in 
the case of a right of way, a good method of interfering with 
its continuance is by constructing a barrier across the way 
and allowing it to remain for a short period. 

party walls. 

There are several kinds of house walls. The ordinary 
wall is, of course, owned by the householder. On the other 
hand there may be a wall owned in common by the proprie- 
tors of adjacent block houses. Sometimes a man finds that 
he has purchased a house which has roof and floors but no 
walls; that is to say, his beams have been set on either side in 
his neighbor's walls. Such a man finds himself in a curious 
predicament. The party wall is a wall in which each proprie- 
tor owns a half and also has a right to demand that the other 
half of the wall shall not be so reduced or interfered with as 
to endanger the support of his building. Thus the party wall 
is practically a wall in which a half belongs to each proprie- 
tor, while each proprietor has an easement of support in the 



284 Rights of Way, and Other Easements. 

other half. The proprietor of the party wall may change 
anything he chooses in his half of the wall so long as he does 
not interfere with the secure support afforded thereby to his 
neighbor. 



CHAPTEE XXX. 
HIGHWAYS. 

Dedication — Prescription — Ways Laid Out by Statute — Discontinu- 
ance—Ownership in the Soil— Individuals, Public or Private Corpo- 
rations, Controlling the Highway, Liable for Defects — Individuals 
may be Liable — Notice — Obstructions — Law of the Road — Turn- 
pikes—Bridges — Streets and Sidewalks — Canals — Railroads. 

Every thoroughfare used in common by the public is a 
highway. The general term, therefore, includes: toll roads, 
railroads, canals, public rivers, ferries and public bridges, as 
well as ordinary roads, streets, lanes and alleys. The public 
passage way may be for vessels, for animals and vehicles, for 
railway cars, for pedestrians, or for bicycles. Footpaths 
bridle paths and bicycle paths are therefore highways. The 
passage may be free or for a fare or toll, but it must be for 
all the public and not for any particular class or set of indi- 
viduals. The highway may be owned by individuals or cor- 
porations, by towns, counties and cities, or by the state at 
large. The title to the soil is usually in the abutting prop- 
erty owner, though sometimes it is in the owner of the way. 
There are also private ways and rights of passage over the 
property of others known as easements, but these are mat- 
ters purely of private concern. Though the public may occa- 
sionally use a private way, it commonly does so only by the 
consent of the owner, express or implied. Where the high- 
way is obstructed so that no passage can be made over it, the 
traveler has the right to pass over the abutting private prop- 
erty without doing unnecessary damage. This is sometimes 
known as a "way of necessity" and, of course, is essentially 
temporary in its character. A highway may come into being 
in three ways : bv dedication, by prescription and by statute. 

285 



286 Highways. 

dedication. 
Dedication is the setting apart of land by the owner for 
the use of the public. Such a dedication, to be effective, muse 
be accepted on behalf of the public, either expressly by the 
proper local authorities or by long public usage. The man- 
ner of acceptance is often regulated by statute, and in such 
cases the statute must be followed. Both the dedication and 
the acceptance may be implied from the acts of the parties. 
If the owner set apart the land either by fences or upon a 
map and sell lots to others, who build on the faith that there 
is a street there, and the public authorities enter and improve 
the street or the general public travels upon it, the law 
would imply a dedication and an acceptance. As a general 
rule a dedication may be withdrawn before it is accepted, 
unless some one has been induced by the owner of the prop- 
erty to buy lots, erect buildings, or otherwise spend money on 
the faith of the supposed dedication. 

PRESCRIPTION. 

A way may become a highway by long continued use, 
usually for a period of at least twenty years, during which 
time it has been treated by all parties as a highway. There 
may never have been a regular setting apart of the street by 
the owner. Tn such cases the width and extent of the way is 
determined by the width and extent of the use, and there 
must be a well defined line of travel. The public cannot 
secure by prescription a right to pass anywhere over private 
property. On the other hand, where the way comes into 
being through dedication, either express or implied, its width 
and extent are determined by the width and extent of the 
territory originally set apart. 

WAYS LAID OUT BY STATUTE. 

The highway laws, of course, differ throughout the Union 
and sometimes in different parts of the same state. As a 
general rule, to authorize the establishment of a highway by 
statute it must be shown to be of general convenience and 



Highways. 287 

mtility, though not of absolute necessity, and its expense and 
the nature of the country are usually to be taken into consid- 
eration. It is not to be built for the convenience of individ- 
uals merely, there must be a public need; nor should it be 
established merely for the purpose of avoiding the payment 
of tolls, though the existence of a parallel toll road cannot 
stand in the way of material public convenience. The ques- 
tion is a legislative one and its decision may be delegated by 
the Legislature to the local authorities. If the proposed road 
is to pass over public waters, or public property, along the 
right of way of a railroad or over an existing highway or 
turnpike, the legislative authority for such passage must be 
expressly given. On the other hand, such a road may pass 
across private property, through buildings and fixtures, yards, 
enclosures, orchards and gardens, unless the Legislature 
expressly prohibits it. The proceeding for the laying out of 
a highway by statute is usually set in motion by a petition on 
the part of freeholders or taxpayers. The persons whose 
property it is proposed to take for the highway are usually 
entitled to notice and a hearing. The notice should contain 
a statement of the time and place of the hearing, the nature 
of the proposed action to be taken, and a description of the 
proposed route. The actual work of laying out the highway 
is usually entrusted to local authorities either regularly con- 
stituted for such purposes or appointed for the especial occa- 
sion. 

DISCONTINUANCE. 

A highway may cease to exist as such either by some 
statutory proceeding or by general non-user and abandon- 
ment. In the statutory proceeding the question is one of its 
public necessity or utility. The power to discontinue a high- 
way is generally delegated to local officers. Abutting prop- 
erty owners are not generally entitled to damages on account 
of the discontinuance of a highway. The non-usage and 
abandonment must generally have continued for a period of 
not less than twenty years. Sometimes, however, where 



288 Highways. 

there has "been a total failure to use a newly opened highway 
for a period of Rye or six years, statutes declare it abandoned. 
The property in the soil of an abandoned highway would 
usually revert to the original owner unless it had been 
acquired by some one else through adverse possession. 

OWNERSHIP IN THE SOIL. 

Except where the statute otherwise provides, the owner- 
ship in the soil of the highway remains in the proprietor of 
the abutting property, which is of course in all respects sub- 
ject to the public easement. This ownership gives the right 
to the trees growing along the highway and their fruit, to the 
grass and herbage growing along the sides of the way, to 
feed cattle there provided they are not allowed to stray along 
the road, to springs and to mineral deposits. The latter must, 
of course, be removed without damaging or obstructing the 
way. The right also includes that of sinking a drain or 
watercourse in the highway so long as it is kept safely cov- 
ered and the public travel not interfered with. The public 
easement cannot be subjected to an additional burden with- 
out compensation to the owner of the soil. It is for this rea- 
son that railway and telephone companies laying tracks or 
erecting poles must have secured the right to do so from the 
owner of the abutting property. 

INDIVIDUALS, PUBLIC OR PRIVATE CORPORATIONS CON- 
TROLLING THE HIGHWAY LIABLE FOR DEFECTS. 

As a general proposition it may be said that whoever con- 
trols and operates a highway, whether it be an individual, 
corporation or public body, is liable for damages directly 
flowing from failure to repair it or keep it in proper order. 
If the highway be maintained by the state or by a public 
body which is purely an agency of the state, the liability 
rests in statute, as a state is not liable to be sued by an indi- 
vidual. Bnt the statutes, even in such cases almost univer- 
sally provide some means for compensation. The road must 
be kept in safe condition for ordinary travel, and there is no 



Highways. 289 

duty to keep it in condition for extraordinary and unusual 
emergencies. The standard of ordinary and reasonable care 
is here as elsewhere the criterion. The municipality is not 
an insurer of the absolute safety of the highway. After 
receiving notice of an obstruction or defect a reasonable time 
in which the repairs might have been made must have elapsed 
before liability accrues. It is not obliged to take precautions 
against the effects of extraordinary floods or storms, nor is it 
liable simply because the road becomes miry as the result of 
long continued rains and the condition of the soil. Upon the 
question of reasonable care, the extent of the highways, the 
character of the country, and the amount of money available 
for the repair of the roads, are usually to be taken into con- 
sideration. In regard to the comparative urgency of repairs 
the highway commissioners usually have a discretion, the 
reasonable exercise of which saves the town from liability. 

INDIVIDUALS MAT BE LIABLE. 

Although the town or city may be liable, if it had notice 
of a defect in a highway caused by a wrong-doer, and negli- 
gently failed to repair it or remove the obstruction, the per- 
son injured has also a right of action against the individual 
making the trouble, and often may join both the town and 
the wrong-doer as defendants in the same action. A person 
who creates an unauthorized obstruction in a highway, which 
causes or may cause injury, creates a nuisance and is liable 
even though due care were exercised. The course of public 
business, however, requires the frequent obstruction of the 
highways in tearing up the streets by private persons and 
corporations. License to produce such obstructions may bo 
secured from the town or city for any proper purpose, and in 
such case the person creating the obstruction is not liable if 
he exercises proper care to prevent injury to others by the 
maintaining of guards, lights, etc. The town also owes a 
duty to the public, properly to supervise the work and see 
that it is properly guarded. In some jurisdictions the giving 



290 Highways. 

of a license may be implied from the maintainance of 
obstructions and excavations for a considerable time. Abut- 
ting owners are under no obligation, to keep tbe highway in 
repair unless required to do so by statute, and so are not 
liable unless they themselves create the defects which cause 
the injury. ~No mere ordinance or other act or by-law of a 
town or municipality can shift the burden of liability for 
repair of the highway or sidewalk from itself to the property 
owner. Therefore ordinances which require the abutting 
property owner to keep his walk free from snow and ice can 
not make him liable for damages in case of his failure to com- 
ply with its provisions. He owes a duty to the town to 
comply with its lawful regulations and may be punished as, 
the ordinance provides for his default, but that ordinance 
does not transfer the town's liability to him. If, however, 
he himself create the icy condition by turning the water 
from a spout or gutter upon the walk, or in any other man- 
ner, it is a different case. 

NOTICE. 

As has already been observed incidentally, the knowledge 
of the authorities charged with the duty of making the 
repairs or removing an obstruction, of the existence of a 
defect in the highway or an obstruction upon it, a sufficient 
time prior to the accident to have given an opportunity to 
remove it, is an essential element of the liability of a munici- 
pality or town for any damages accruing. This notice under 
some statutes must amount absolutely to actual knowledge 
of the defect or obstruction, but generally what is termed 
a "constructive" notice is sufficient. This implied or con- 
structive notice may arise from the fact that the defect had 
existed for so long a time that every one traveling on the 
highway knew about it, or from the presumption that if rea- 
sonable care and diligence had been exercised by the author- 
ities, the defect or obstruction would have been discovered 
in time to have averted the accident. Upon this the charac- 
ter of the highway, the frequency of its use, the nature of 



Highways. 291 

the defect, whether obvious or hidden, and similar consid- 
erations have a bearing. Not only is notice of the existence 
of the defect, actual or implied, necessary. The statutes gen- 
erally require that a person seeking to recover damages from 
a town or municipal corporation for injuries sustained 
through a defect in a highway shall, before bringing suit, 
serve notice on the town or such corporation of the happen- 
ing of the accident and of the intention to bring the suit, 
and this notice must usually be served within a comparatively 
short time after the accident. It should contain a statement 
of the time and place of the accident, a description of the 
defect and of the injury, and a statement of the amount of 
damages claimed, and should usually be verified under oath. 

OBSTRUCTIONS. 

As has been before said, any material unauthorized 
obstruction of a highway is a public nuisance. Buildings, 
fences, walls, gates, excavations, cannot encroach on the high- 
way without clear authorization. On the other hand, trees 
are not unlawful obstructions unless they are permitted to 
grow in such a way that they form an unreasonable obstruc- 
tion to travel. No one has the right to so conduct his business 
that crowds or teams are unreasonably congregated upon 
the road, or to use the highway as a market, or to maintain 
booths or stalls upon the public way. Nor, without authority, 
can a railroad company obstruct a crossing unreasonably with 
its cars. Such obstructions, when they give rise to accidents, 
make the obstructor liable, and he is also liable to indictment 
and criminal prosecution for maintaining a nuisance. Stat- 
utes often supplement these remedies by the imposition of 
fines and penalties. 

LAW OF THE ROAD. 

Vehicles passing each other on the highway must in this 
country pass to the right. Each has the right to assume 
that the approaching driver will observe this law. On the 
other hand, if one desires to stop on the left side or the 



292 Highways. 

passage on the right is for any reason unsafe, the passage to 
the left may be made if due care be exercised. Persons on 
horseback are usually supposed to give way to vehicles, 
and a street car, of course, has the right of way on its track. 
When teams are going in the same direction the driver of 
the rear vehicle must govern himself by the motions of that 
in front, and the rule of passing to the right does not apply. 
Each much use due care to prevent accident in passing. 
Neither has the exclusive right to drive ahead. In bicycling 
in most sections of this country, the unwritten rule seems to 
be to pass wheels going in opposite directions to the right and 
in the same direction to the left or to the outside of the 
path. This is a custom, however, and has not yet received 
the sanction of legal decision. A pedestrian is not necessar- 
ily obliged to keep to the sidewalk if he choose to walk in 
the street, and due care must be exercised by drivers not to 
run him down. Neither pedestrian nor vehicle has the right 
of way at crossings. Each has the right in common and each 
is bound to the exercise of due care. The speed on the high- 
way proper to be observed is usually a matter of statute, and 
the fact that two teams were racing on the highway is almost 
conclusive on the question of negligence. 

TURNPIKES. 

A turnpike is a public highway maintained by a private 
corporation under authority of the Legislature, which derives 
its profits from a toll charged the users thereof under the 
regulations of its charter. The corporation maintaining the 
toll road is responsible for its repair, and the road is subject 
to all the other laws of the highway. It is lawful for the 
town or municipality to aid the company in the maintainance 
of the road by funds derived from taxation. The company 
has the right to do any act necessary to the exercise of its 
franchise. It may erect toll gates on the highway and close 
them if the payment of the toll is refused, and may maintain 
actions to collect toll. 



Highways. 293 

BRIDGES. 

A public bridge is a part of the highway. As inland trade 
by land is just as important as trade by water, Congress, and, 
in the absence of action by Congress, the state governments, 
have the power to authorize the construction of bridges, even 
though they partially obstruct navigation. But such obstruc- 
tion should be no greater than is necessary. Where the 
bridges are across waters which form the boundary between 
states they can be constructed only by act of Congress or the 
concurrent action of both Legislatures. Where they cross 
waters which form the boundaries between towns or coun- 
ties the matter is usually regulated by statute and the 
expense apportioned, while both are jointly responsible for 
keeping it in repair. Toll bridges are constructed under 
much the same conditions as toll roads, and the exclusive 
franchise once given to one company to build a bridge would 
prevent the Legislature from giving a similar franchise to 
another company to build another bridge so near the first 
that the privileges of the first company would be seriously 
curtailed. 

STREETS AND SIDEWALKS. 

Bl street is a highway in a city. It generally includes the 
gutters and the sidewalks. Abutting owners have the right 
to use both temporarily and reasonably for the deposit of 
merchandise and the loading and unloading of goods, and 
usually for the temporary deposit of building material. 
These matters are largely regulated by local ordinances. 
The abutting owner has an easement for access to the street 
and sidewalk, and also for the approach to his windows of 
light and air. This has been made in New York city the 
ground of heavy damages against the elevated railroad com- 
panies whose roads interfered with this easement. The 
Legislature primarily has the control over the streets, but 
usually delegates it entirely to the municipal authorities in 
the city charters. This control includes the paving, repaving^ 



294 Highways. 

repair, the granting of franchises for street surface railways, 
gas companies and the like, the erection of poles and wires 
and all of the complicated necessities and conveniences of 
city life under modern conditions. The improvements are 
usually made at the expense of the abutting property owners, 
and this often raises important questions of assessment and 
taxation considered elsewhere. 

CANALS. 

These are artificial water courses sometimes built by 
private enterprise, but now usually maintained by the state 
governments for the benefit of public commerce. The 
expense of maintenance is usually supported by tolls. The 
towpath is not a highway for any other purpose than that 
for which it is built and maintained. The bed and banks are 
usually owned by the state, and the right to take canal ice 
must usually be secured from the state authorities. 

RAILROADS. 

The status of these corporations more properly belongs 
to the chapters on carriers and on the taking of private prop- 
erty for public purposes. Their tracks are highways only for 
the passage of locomotives and cars, and ordinarily the public 
has no easement either to walk on the track or to drive vehi- 
cles along the property of the company at its side. 



CHAPTEE XXXI. 
WATER A^D WATER COURSES. 

Public Rights— Public Rights not Exclusive — No Right to use of 
Shore — Private Rights in Public Waters — Waters in which the 
Public has no Rights — Domestic Uses — General Purposes — Dams — 
Bridges and Culverts — Reasonable Use of Water — Irrigation — 
Damages for Flooding — Pollution — Artificial Water Courses — 
Artificial Accumulations of Water — Priority — Private Rights. 
Taken for Public Purposes— Surface Water— Under Either System 
— Easements in Water — Licenses — Prescription. 

Three-quarters of the globe is a barren waste of sea. The 
laws in war and peace, of trade and commerce, deep sea fish- 
ing, wrecks and piracy, are fixed by international treaties and 
International Law. Beyond the limit of three miles national 
dominion ends, except as it extends to the decks of vessels 
upon the high seas. On the great lakes national dominion 
reaches to the central boundary line between this country and 
Canada. Within these national territorial limits water is sub- 
ject to legal provisions whether it be salt or fresh, whether it 
rises and falls with the tide or flows in a brook or mighty river, 
whether it falls in rain from above or percolates through the 
soil below. 

PUBLIC RIGHTS. 

In the ocean borders, the tidal rivers, bays and sounds, and 
in the navigable inland rivers, the public rights are paramount. 
Congress may regulate commerce on the navigable waters of 
the country, and, subordinate to the powers of Congress, the 
state government may regulate bridges, wharves, ferries and 
other matters connected with navigation. It may grant rights 
of fishery and oyster cultivation, bridge and ferry franchises, 
to private persons and corporations. The long navigable 
streams of the United States, useful for inland commerce 
hundreds of miles above tide water, are natural public high- 

2S5 



296 Water and Water Courses. 

ways, and it would not be supposed that any private property 
in the land over which they flow would be recognized. In the 
process of applying English law to American conditions some 
states, however, have seen fit to recognize titles in the owners 
of the shore in the land under the water to the middle of the 
stream, while other states deny title to the owner of property 
on the bank further than to low and sometimes to high water 
mark. Where no private title is held in the bed of the larger 
rivers, islands formed therein, of course, belong to the state. 
Even where the bed of the river is a subject of private 
ownership, private rights are subordinate to and must yield to 
public needs ; and the right of navigation, wherever navigation 
is possible and of benefit to the public, is everywhere para- 
mount. Even where streams are not ordinarily navigable for 
boats, but the business of the country demands a passage way 
for logs, the public has a right of way for their passage and 
dams cannot be built unless they are constructed with a 
sluiceway for the passage of logs. 

PUBLIC RIGHTS NOT EXCLUSIVE. 

While the public easement for purposes of navigation is 
paramount to all other rights, it is not exclusive and must be 
exercised with due regard to private interests. The owner of 
a vessel cannot maliciously run down nets, and is liable if he 
carelessly causes damage to piers, bridges, landings, shore ice 
and the like. On the other hand, all impediments to naviga- 
tion by private individuals or corporations are public nui- 
sances. 

NO RIGHT TO USE OF SHORE. 

But the public easement of navigation gives no right to 
the use of the banks or shores for any purpose. The owner 
may enter, ordinarily, to reclaim stranded property and, in 
some states, a statutory right is given to enter and reclaim 
stranded logs, but ordinarily any use of the shore by navigat- 
ors must be paid for, no matter how necessary it may be. 



Water and Water Courses. 297 

PRIVATE RIGHTS IN PUBLIC WATERS. 

Every water course or river consists of the banks, the bed 
and the water. It begins at the point where the water reaches 
the surface of the ground and ends where it enters another 
river, a lake or the sea. Certain rights always accrue to the 
owner of the banks of a public waterway, whether his title be 
to the water's edge or to the center of the river. These rights 
are: 

(a). Right of Access — This cannot be interfered with by 
the extension of a wharf in front of another's shore line or by 
mooring vessels so as to interfere with the going and coming 
of boats. 

(b). Right of Additions to the Land — Such additions may 
be caused by deposits of drifting soil or by the falling away 
of the water. If the title extend to the center of the stream, 
a newly formed island belongs to the respective owners of the 
bank opposite, on either side. 

(c). To Wall Up the Banks — This right must be exercised 
so as not to interfere in any way with the proprietors of the 
shore above or below. 

(d). To Build Piers into the Shoal Water — This right does 
not depend upon title to the bed of the river; but the piers 
must not interfere with navigation or with adjoining propri- 
etors. 

(e). Right to Fish — This right belongs to the owner of the 
bank exclusively if his title is to the middle of the stream, if 
not, to the public. 

(f). Right to Ice — This also depends upon the question 
whether the title extends to the center of the stream. If it 
does not, the ice is common property. If it does, the ice form- 
ing is considered as a part of the real estate, and no one else 
can appropriate it to his own use, and any one who injures the 
ice either by breaking it or polluting the water is liable to 
damages. 

(g). Right to Property Drifting Ashore — This right is 
good against all the world except the true owner of the prop- 
erty seeking to reclaim it. 

WATERS IN WHICH THE PUBLIC HAS NO RIGHTS. 

In streams in which the public has no easement either for 
navigation or for the passage of logs there can be no conflict 



298 Water and Water Courses. 

between public and private rights ; but the owners of the banks 
and the bed of the stream have numerous mutual rights and 
liabilities. The land under the water is always the subject of 
private ownership. ^N"o one person owns the flowing water. 
Each man has the right to have the stream which washes his 
land flow as it is wont by nature, without material increase or 
decrease, at its usual quantity, quality, place and height. 
While it is on his land he may use it but not abuse it. 

DOMESTIC USES. 

This general proposition is subject to one exception, impor- 
tant only as to very small streams in very dry districts. A 
man is entitled to use and consume entirely all of the water 
that comes on his land, for purely domestic purposes. If it is 
all needed for washing, cooking, drinking and watering stock, 
it may all be taken. But one man may not use up a whole 
stream for irrigating his plowed land or for any purpose other 
than such as is purely domestic in its nature. 

GENERAL, PURPOSES. 

For any other purpose, farming, manufacturing, power 
and the like, each proprietor is equal, no matter how large or 
small his holding. Each has the right to have the water flow 
past his premises undiminished and unpolluted. Each has 
also the right to use the water in any reasonable way so long 
as he does no material damage to any one else. Upon the 
question whether or not his use is reasonable, the width and 
depth of the river, the fall, the volume of water and the gen- 
eral business pursuits of the locality must be taken into con- 
sideration. The needs of the particular business of the pro- 
prietor, on the other hand, make no difference. One often 
needs things that belong to other people. The question is 
simply whether the use is reasonable under all the particular 
circumstances of the case. 

dams. 
The right to the reasonable use of a stream which is not 
navigable includes the right of building dams across it for 



Water and Wateb Coubses. 299 

the purpose of confining its flow and securing water power, or 
for any other beneficial purpose. Water may be detained in 
this way even though the temporary detention causes incon- 
venience to those below; but the dam must be of a construc- 
tion reasonably adapted to the nature of the stream. It can- 
not be permitted to back water up on the property of owners 
above, nor can it withdraw from any one the use of water to 
which he is entitled. It must be built so as to resist the cus- 
tomary freshets of the river, and if it break, through insuffi- 
cient or negligent construction, the owner is liable for ensu- 
ing damage. In most states he is not liable if the break be 
the result of great and unusual inundation. 

BRIDGES AND CULVERTS. 

The owner of the bank may bridge a stream, or it may 
be bridged by a town, corporation or municipality. In the 
same way as a dam, a bridge or a culvert must be calculated 
to resist the usual freshets of the river and they must be so 
constructed as to allow the passage of logs or other drifting 
material; for, if through neglect of this duty, the current is 
clogged and the adjoining land overflowed, the owner of the 
bridge is liable. 

REASONABLE LOSS OF VOLUME. 

The mere fact that a portion of the water is lost while in 
use does not give a cause of action. Some of the water is 
inevitably lost by evaporation while it is spread out in a mill 
pond or when it is taken away in the form of ice. The test 
question here as elsewhere is: Was the use reasonable under 
all the circumstances? 

IRRIGATION. 

Water may also be consumed in irrigation. This often 
takes up large quantities which never return to the original 
channel. Such use of the water cannot be made if it inter- 
feres unreasonably with the rights of parties lower on the 
stream. This will of course depend somewhat on the business 
of the country and the proportion of the water taken. 



300 Wateb and Water Courses. 

damages for flooding. 
This may be caused either by the backing up of water 
from below, by inundation from above or by percolation 
through the banks. In order to entitle the plaintiff to dam- 
ages he must show that his land has been flooded, that it was 
flooded hj the fault of the defendant and that he has suf- 
fered material injury. The damages he can recover are con- 
fined to such as necessarily and directly follow from the flood- 
ing. 

POLLUTION. 

Each proprietor has the right to have his water come to 
him unimpaired in quality as well as quantity. His neighbors 
have no right to render his water impure by maintaining of 
cattle yards, hogpens, lime pits, slaughter houses, cesspools, 
manure, oil and gas plants and the like, or to turn into the 
stream oil, gas, sewage, dyes, acids, and refuse of any noxious 
character. On the other hand the stringency of this rule must 
vary with the locality. In farming communities, where the 
pollution of the stream would be fatal to stock and seriously 
interfere with or prevent the use of water for domestic pur- 
poses, the damage would be greater and the liability more 
certain than in manufacturing districts where the streams are 
used almost exclusively for water power. JSTot every pollu- 
tion of a water-course, therefore, is in itself illegal. The 
standard of reasonable use must again be applied. The right 
to have the stream flow in its natural state must yield in some 
degree to the natural and necessary uses of the water course. 
[Running streams cannot be used for commercial and manu- 
facturing purposes and remain perfectly pure and these pur- 
poses are just as legitimate as the ordinary use of water for 
agriculture. On the other hand the uses of manufacture 
and commerce must be within bounds. Poisons must not be 
turned into a stream. Acids and the deposit of dye stuffs, 
large and unreasonable quantities of sewage, offensive mat- 
ter from tanyards, all produce pollutions which are generally 



Wateb and Water Coueses. 301 

actionable. When a stream has been polluted for twenty 
years and upwards the right to continue such pollution may 
be acquired by such continued usage as far as private rights 
are concerned; but no one can by usage acquire a right to 
pollute a stream when such pollution would amount to a 
public nuisance. 

ARTIFICIAL, WATER COURSES. 

These are always created either by the proprietor of the 
soil at the time, or by some agreement or contract between 
private persons or corporations, or else by the exercise on the 
part of the state of its power to take private property for 
public purposes. They are not, therefore, subject to the 
rules of law governing the rights of property along the mar- 
gin of natural streams. The owners of such waterways are, 
of course, bound to exercise due care in their maintenance, 
and aqueducts must cross streams subject to the same liabil- 
ities that fall upon the proprietors of culverts and bridges. 

ARTIFICIAL ACCUMULATIONS OF WATER. 

Any artificial accumulation of water by a private indi- 
vidual on his own land by dams or in reservoirs is at his own 
risk. If the water escape and does damage to others, he is 
liable, no matter what care he exercised to prevent the mis- 
hap. In some states this rule is modified to the extent that 
the person accumulating the water would not be liable in the 
case of a general flood or inundation. Where the water is 
collected artificially for a public purpose under authority of 
the Legislature, and it escapes and causes damage, there is no 
liability in the absence of negligence. In some states stat- 
utes give a remedy to property owners damaged by the escape 
of water through the breaking away or leakage of canal 
banks. 

PRIORITY. 

Merely because a mill is erected by one proprietor before 
an adjoining proprietor chooses to exercise that privilege, he 
acquires no greater or other rights than the proprietor of 



302 Wateb and Wateb Courses. 

the second mill, in the absence of some license, grant, or right 
arising from long usage. In some of the mining states, espe- 
cially upon the Pacific coast, where settlement was first made 
on public lands, the right to the use of running water may 
exist without ownership in the soil, and prior occupation 
determines the right as against others. This rule, however, 
is entirely peculiar to the section where it is in vogue, and it 
arises out of the necessities of mining which, of course, differ 
from those of manufacturing and agriculture. 

PRIVATE RIGHTS TAKEN FOR PUBLIC PURPOSES. 

As will be seen elsewhere, the state has the right to take 
such private property as it requires for public purposes, so 
long as it does so by due legal process and makes just com- 
pensation. Private rights in water are subject to the exer- 
cise of this power, just as are any other private property 
rights. Large cities and towns must be watered, sometimes 
to the taking of whole lakes and rivers. ~No private person 
could sell this water to the state. The water itself does not 
belong to him, but to everyone owning property on the line 
of the stream or shore of the lake, and the rights of all these 
individual proprietors must be acquired by the city that 
desires the water. This power may also be exercised for the 
construction of canals, booms and dams for flooding lumber, 
reclaiming of tracts of flooded land, the drainage of swamps 
for the protection of public health, drainage to protect the 
highway, the laying of drains and sewers, and, in some states, 
the maintenance of public mills. 

SURFACE WATER. 

Water merely on the surface of land, gathered temporar- 
ily into natural depressions or in swamps, or percolating 
through the soil in no definite channel, is not a water course, 
nor can it become a water course by being drained through 
a surface ditch. The law of water courses, therefore, does 
not apply to surface drainage. Two distinct and conflicting 
systems of law prevail in different parts of the Union in 



Water and Water Courses. 303 

regard to surface water. A rule derived from the English 
law prevails in New England, New York, New Jersey and a 
few northwestern states. This rule is that no one is respon- 
sible for surface drainage. If one alter the grade of his lot 
so that surface water collects on another lot or in the high- 
way, no one is liable. If the grade of the highway is altered 
so that the adjacent land is flooded by surface water, the 
town is not at fault. If the surface drainage which is accus- 
tomed to flow over adjoining land is altered by the owner of 
the upland, the man who loses the water has no legal claim 
against the man who takes it. 

On the other hand, the rule derived from the law of Con- 
tinental Europe prevails in Pennsylvania, the South and 
most of the western states. Under this rule the lower lying 
lands owe a "servitude," so called, to receive the surface 
drainage of the lands above, and any alteration of the grade 
which produces injury must be answered for in damages. 
The owner of the upland cannot divert the surface drainage 
from its natural flow nor use up the water altogether except 
for purely domestic purposes. 

UNDER EITHER SYSTEM. 

Under either of these rules, however, the upper proprie- 
tor cannot collect all of the surface drainage into an artificial 
channel and discharge it "en masse" upon the lands of an 
adjoining proprietor. One may, however, turn such a drain 
into a brook or other natural water course, into which the 
water would in any event, eventually flow, even although 
the brook be thus flooded in time of heavy rains. The owner 
of a building who extends his eaves so that they drip upon his 
neighbor's lot is everywhere liable. 

Surface water may not be unreasonably polluted, any 
more than any other water. 

SUBTERRANEAN WATER. 

Sometimes water below the surface of the soil flows in 
known and well defined channels. In such case it would be 



304 Water and Water Courses. 

subject to the same rules as water flowing in any water 
course above ground. But unless it can be proved that the 
underground water flows in this way, it is presumed that it 
merely percolates through the soil and is subject to the reg- 
ulations concerning surface water. If one man pumps water 
from his well unreasonably so that his neighbor's well 
becomes dry, he is under no liability to his neighbor unless 
the latter can show that his well derives its water from the 
same underground brook, flowing through a regular channel ; 
it is otherwise presumed that both wells are fed from mere 
surface percolations. Pollution produced by the unreason- 
able percolation of poisonous substances into wells or streams 
above ground is actionable. 

EASEMENTS IN WATER. 

An easement is a legal term which, roughly speaking, 
signifies the right of an occupant of land in or concerning 
the land of his neighbor, the exercise of which would give 
that neighbor legal cause of action if the right did not exist. 
Such an easement should always be granted by deed, as it is 
an interest in lands, unless the right has been acquired by a 
long usage, known in law as "prescription." In this way the 
owner of rights in water may grant them to another, though 
he still retains his property in the soil adjoining the stream. 
It is, in fact, a common practice for manufacturers and 
others to buy up the water rights along a stream and thus 
acquire for their plant privileges which otherwise could not 
be exercised without bringing upon them endless litigation. 

LICENSES. 

Sometimes, where there is no formal grant of an ease- 
ment, an informal or verbal license is given which confers a 
right, usually temporary, to do an act which would otherwise 
make the person who does it liable. Such a license is ordi- 
narily revocable at pleasure, unless the person to whom it 
was given had gone to great expense on the faith of it, and 
even then his rights are very uncertain and insecure. Such 



Water and Water Courses. 305 

a license would not ordinarily pass with the land to a new 
purchaser. 

PRESCRIPTION. 

Where rights have been exercised for more than twenty 
years, in a manner inconsistent with the rights of others, 
openly and notoriously, without any permit or license, and at 
the same time without being seriously challenged or dis- 
puted, they come to have the same force as though they were 
originally given by deed. This is what in law is termed the 
acquirement of land by "adverse possession" or of rights by 
"prescription/ 7 Water rights are frequently acquired in 
this way. In most states statutes fix the time in which pre- 
scriptive rights can be acquired, at twenty years. 



CHAPTEK XXXII. 

SOVEREIGN POWERS. 

The Sovereign Power — Treaties — Extradition — Tariffs and Foreign 
Commerce — Inter-State Commerce — Diplomatic and Consular 
Offices — The Executives — The Legislatures — Statutes — Construction 
and Repeal. 

We have now come to that portion of our treatise which 
will deal more largely with the relation of the private citizen 
to his state and nation; in the course of which we shall 
endeavor to point out such rights as are guaranteed the indi- 
vidual by the government, and to summarize some of the 
duties which he owes, and may be required to pay, to his 
country. It must be assumed that every man knows, in a 
general way, what the framework of our government is; 
understands the division of the sovereign power into the 
legislative, executive and judicial branches; how the execu- 
tive participates in legislation by his veto power, and shares 
in judicial functions by auditing claims and issuing pardons; 
how the Legislatures check the executive by advising and con- 
senting to important appointments; how they prescribe the 
jurisdiction and proceedings of the courts; and how the 
judicial power construes the laws and passes upon their con- 
stitutionality. 

THE SOVEREIGN POWER. 

In every civilized community there resides somewhere a 
sovereign power whose will is supreme, which can do no 
wrong for which it is responsible to man, and which holds 
all life and property at its ultimate disposal. All the strug- 
gles of liberty against tyranny on the one hand and of order 
against anarchy on the other, turn upon the question where 
that power shall reside, in the particular state, and by whom 

306 



Sovereign Powers. 307 

and to what extent it shall be exercised. In the American 
Union it resides in the people, who have delegated portions 
thereof to the national and state governments. The powers 
of the national government are such only as are expressed 
or necessarily implied in the Constitution. The powers of 
the state governments include all sovereignty not taken 
away by the national or state constitutions. Hence it is that 
no private citizen or corporation can bring suit at law against 
his sovereign. He may make contracts both with the states 
and the United States; but when he makes them he should 
bear in mind that he can enforce them only through the 
consent of the state itself. Provisions for proving and 
enforcing claims against the state and the nation are every- 
where made to meet this emergency; but, in the absence of 
such provisions, the private citizen has no redress. Under 
the American theory of government the states are to each 
other in many respects as foreign countries, which have 
exclusive control over their domestic relations, but no power 
to regulate in any w T ay outside concerns. The national gov- 
ernment faces the world without as a unit, and regulates the 
inter-state relations under the Constitution. Not many years 
ago a situation arose which presented many theoretical diffi- 
culties. A certain body of Italian workmen had been set 
upon by rioters in Louisiana, and several of them were killed, 
while 'all were ill treated. The Italian government demanded 
satisfaction of the United States. Theoretically, the whole 
affair was the concern of the state of Louisiana, and that 
state could have no relations with the Italian government. 
The national government paid the claims, protesting at the 
same time that it was an act of grace and that there was no 
legal liability resting upon it; a doctrine which presents 
puzzling questions for the students of international law. 

TREATIES. 

The treaty-making power of the United States resides in 
the President and Senate. The President negotiates the 



308 Sovereign Powers. 

treaty through his cabinet officers and, after negotiation, it 
must be ratified by a vote of two-thirds of the Senators pres- 
ent, in order to make it a final and binding compact. This 
situation is not or has not been thoroughly understood by 
foreigners, who have often found it a source of great vexa- 
tion in dealing with this country. At one time Denmark 
believed that she had effected a sale of the Danish West 
Indies to the United States. She has always wished to sell 
them and we, in our own good time, to buy them. The Sen- 
ate failed to ratify the treaty and the sale fell through. The 
Danes were sorely offended. Negotiations have just 
been resumed this year (1902), and the islands will 
probably be purchased. A treaty, when once made, is 
a part of the supreme law of the land, and any state law in 
conflict therewith must yield. But the acts of Congress are 
also the supreme law of the land, and when an act of Con- 
gress conflicts with a treaty, the law of the later date stands. 
The courts will reconcile any apparent conflict wherever pos- 
sible, and will not readily assume that Congress intended to 
violate a treaty. The commercial treaties of the United 
States are of vast importance to our industries and often 
change or modify our tariff laws. They also may and do 
affect the rights of our naturalized citizens when traveling 
abroad. Every man familiar with our history knows the 
struggle this country went through in order to enforce upon 
the old world the doctrine that a naturalized citizen 
of the United States might abandon his allegiance 
to any foreign prince, potentate or power, and par- 
ticularly to the sovereign of the nation of which 
he was formerly a citizen. And yet this right, which 
we have established and maintained, we have consented to 
modify to a limited extent in some of our treaties with coun- 
tries in continental Europe which maintain a compulsory 
military system. We could hardly contend that persons who 
had offended against the laws of their own country could 
escape the penalty by becoming American citizens. We have 



Sovereign Powers. 309 

agreed with Germany and Austria that when their citizens 
emigrate to this country and have thereby violated the mili- 
tary regulations of their own country, if, for any reason, 
they return to the land of their birth, they may be com- 
pelled to fulfill the obligations they have sought to escape by 
becoming American citizens. For this reason it may happen 
that a naturalized American, who had come to this country 
a poor emigrant, and become rich may find, when traveling 
for pleasure abroad, that his American citizenship will not 
protect him from a very unpleasant situation, and that he 
might be compelled to serve for a time in the armies of the 
German Emperor. What the status of such a person would 
be in the event of war between Germany and the United 
States would present an interesting subject of disquisition 
for both the international lawyer and the popular novelist. 

EXTRADITION. 

Where a criminal under the laws of one state has effected 
his escape into the jurisdiction of another nation, the latter is 
under no obligation to deliver the fugitive, on the demand 
of his government. The surrender, if made at all, would be 
either as an act of grace or the result of treaty. In this 
country there is no one vested with power to make such sur- 
render to a foreign government except under a treaty. Our 
extradition treaties require that the offense charged against 
the fugitive must be specified in the warrant demanding 
extradition; that the offense specified shall be one enumer- 
ated as extraditable in the treaty between the two govern- 
ments; that on his delivery he shall be tried for that offense, 
according to the laws of his country, and for no other, until 
he has had a reasonable time in which to return to this coun- 
try, if he desire. As the states of the union are, as to such 
matters, in the same relation to each other as foreign coun- 
tries, the extradition of a criminal who has escaped from one 
state to the territory of another is regulated by the Constitu- 
tion and the acts of Congress. The right to demand the 
extradition is vested solely in the governor of the state or 



310 Sovereign Powers. 

territory whence the fugitive from justice has escaped. The 
proceeding for extradition is subject to many technical rules 
and defenses. Though the decisions are conflicting, the 
weight of authority would seem to be that the criminal, once 
extradited, cannot be tried for any other offense than that 
for the commission of which he was extradited. 

TARIFFS AND FOREIGN COMMERCE. 

To Congress is given authority by the Constitution to lay 
imposts or duties upon imports, and to regulate com- 
merce with foreign nations, among the several states, and 
with the Indian tribes. A large portion of the revenues of 
the government are derived from imposts upon imports. The 
tariff laws have been the source of dispute between politi- 
cians and political economists, farmers and manufacturers, 
practical men and theorists, since the foundation of the gov- 
ernment. One of the great political parties not long ago un- 
dertook to declare that protective tariffs were unconstitu- 
tional; possibly upon the theory that it was the power of 
raising revenue that was conferred by the Constitution upon 
Congress, and not the power of incidentally benefiting one 
class of citizens, to the real or fancied detriment of another, 
while imposing a tax. But no one has ever seriously under- 
taken, in recent times, to dispute the constitutionality of 
protective tariffs in courts of law. The dispute therefore 
concerns the province of politics and political economy, and 
not of the jurist. But the states cannot regulate commerce 
cither with foreign countries or between themselves. 

INTER-STATE COMMERCE. 

The province of regulating commerce between the states 
belongs to Congress. No state can derive a revenue from 
taxing its own imports or exports, whether they are going 
abroad or to another state. Such a tax would be void as in 
contravention of the Constitution of the United States, and 
any money collected under it would have to be turned into 
the national treasury. Corporations engaged in inter-state 



Sovereign Powers. 311 

commerce have sought to escape taxation altogether on this 
ground: but it has been held that the property within a state 
belonging to a foreign corporation may be taxed, or a tax 
may be imposed upon a corporation on account of its prop- 
erty within a state, and may take the form of a tax for the 
privilege of exercising its franchises within the state, if the 
ascertainment of the amount of the tax is made to depend on 
the amount of the corporation's property within the state. 
The effect which the inter-state commerce laws may have 
on the internal regulations of a state is illustrated in a later 
chapter. 

The regulation of inter-state commerce includes power 
over all of the navigable waters of the United States, and it 
is under that power that Congress passes its annual River 
and Harbor bill. It includes all vessels engaged in the coast- 
wise trade; all bridges which cross navigable streams, rail- 
roads, canals and other modes of inter-state conveyance and 
transportation, and may be extended to all forms of inter- 
state traffic. The power is exclusive in respect to all matters 
which are in their nature national and require one uniform 
system; but, in other matters, the states may act, subject to 
the national power and not in conflict with it. The famous 
Inter-State Commerce act of 1889, which undertakes to regu- 
late all inter-state carriers; to forbid unjust discrimination or 
unreasonable rates; to provide for a smaller charge in the 
aggregate for a long than a short haul; the prevention of 
pooling of freights and the dividing of earnings, is one of the 
most important pieces of national legislation ever enacted 
and enforced, and its benefits extend to every part of the 
country. The act establishes an Inter-State Commerce Com- 
mission, which has rendered useful services to the public since 
its organization. 

DIPLOMATIC AND CONSULAR OFFICERS. 

Foreign countries are represented by such officers here, 
and over foreign legations the United States Supreme Court 
has exclusive jurisdiction. They can neither be sued nor 



312 SoVEEEIGN POWEES. 

sue in a state court. The United States is represented abroad 
by diplomatic agents who transact official public business, 
and they include ambassadors, envoys extraordinary, minis- 
ters plenipotentiary, ministers resident, commissioners, 
charges d'affairs, agents, and secretaries of legation. Our 
country is also represented abroad in its commercial interests 
by consuls general, consuls, commercial agents, deputy com 
suls, consular agents, and their various deputies. The duties 
of the consular officers are to keep lists of seamen shipped 
and discharged, a record of arriving and departing vessels, 
to administer the personal effects of citizens of this country 
who shall die within their consulate, and, in a general way, 
to look after the commercial interests of their country in 
the section to which they are commissioned. 

THE EXECUTIVES. 

Such portions of the sovereign power as are lodged in 
the President of the United States and the Governors of the 
several states, aside from their right to veto legislation 
and the pardoning of convicts, relate chiefly to execution of 
the laws, and the general administration of government. In 
time of war the President of the United States, as com- 
mander in chief of the armies and navies of the nation, has 
an extraordinary authority which lies dormant in time of 
peace. He is not amenable for his acts to the ordinary courts 
of law, but is subject to the court for the trial of impeach- 
ments, as provided by the Constitution. 

THE LEGISLATURES. 

To the state Legislatures, within their constitutional jur- 
isdiction, is confided the power of making, altering, and 
repealing the laws. The theory of government is representa- 
tive in character, but the enactment of laws into the consti- 
tutions, by popular vote, has been coming into fashion, intro- 
ducing a system of referendum into our polity which is 
novel to our older institutions. The Legislatures also often 
delegate their power to local political bodies and some of the 



Sovereign Powers. 313 

state constitutions undertake to introduce the theory of local 
home rule in respect to matters which do not concern the 
state at large. As, on the one hand, the national govern- 
ment has only such powers as are to it delegated by the Con- 
stitution, so, on the other, the states, towns, cities, and 
villages, throughout the union, which exercise powers in 
their nature legislative, possess such powers only to such 
extent as they are with them vested, either by constitutional 
or legislative enactment. All residuum of legislative power 
remains in the state Legislature, under the Constitution. In 
the absence of constitutional restraint the Legislature may 
provide for tearing down a city block and turning it into a 
public park and tax the people for it. It may alter the 
boundaries of towns, counties, and cities, and provide for 
their consolidation or separation; it may legislate municipal 
officers out of office, or do any other act which violates what 
is known as the principle of "home rule," unless that prin- 
ciple finds expression in the particular state Constitution. In 
some of the states this principle has been enacted in so far 
that the Legislature can impose taxes upon localities for state 
purposes only, taxes for local purposes being authorized only 
by indirect legislative authority through the instrumentality 
of local officers. "We shall have occasion to examine this 
subject more fully when we come to discuss local govern- 
mental institutions. The legislative powers of police, tax- 
ation, and eminent domain also demand extended comment, 
and legislative proceedings are covered by the chapter on 
parliamentary law. 

STATUTES. 

Statutes may be declaratory of the law as it stands, in 
order to remove a doubt, often in this way settling disputes 
as to future litigations where question had arisen in the 
courts, affirming that the law was as stated or declaring that 
it is not. They may be remedial, for the purpose of remov- 
ing some defect in the law, or penal, imposing a penalty or 
forfeiture for disobedience of its mandates. They may be 



314 Sovereign Powers. 

public, when they affect the community at large, or private, 
when they concern a few individuals only. They may be 
mandatory, in which case they must be followed implicitly; 
or merely directory, in which event a failure to comply with 
their provisions may be irregular while it is not necessarily 
illegal. They may be prospective or retrospective, perpetual 
or temporary. Retrospective laws are strictly construed by 
the courts, and they cannot destroy or impair vested rights. 
In the enactment of statutes they are subject to the usages 
of parliamentary law; and before they are of binding force 
they must become laws under the provisions of the state 
Constitution. For instance, if the Constitution provide that 
only such matters as are mentioned in a proclamation for an 
extra session can be considered at that session, legislative 
action on any other subject, at that session, would be uncon- 
stitutional and void. Many of the state constitutions pro- 
vide that the title of a bill shall indicate its subject matter. 
Where this provision is violated, such portions of the bill as 
were not in some way covered by the title would be uncon- 
stitutional. The law takes effect from the date of its passage 
unless some other time is fixed by the bill itself, or some 
other regulation provided by the Constitution. 

CONSTRUCTION AND REPEAL. 

The construction and interpretation of statutes falls to 
the duty of the courts of law, and one of the most difficult 
tasks of judges and lawyers is the application of the law, as 
it comes from the Legislature, to the facts of specific cases. 
Was the law constitutional? Does it conflict with any other 
law? If it does conflict, which law governs? What does the 
act mean? What was the intent of the Legislature? These 
are the questions that present themselves in the case of every 
statute that comes before the courts. If the language is 
clear and admits of but one meaning, the court has no right 
to presume that the Legislature designed that it should mean 
anything else. There can be no departure from the plain 
meaning of a statute on the ground that it is unwise or mis- 



Sovereign Powers. 315 

taken in its policy. The remedy for that is not with the 
courts. The duty of the court is not to make the law just or 
reasonable, but to expound it as it stands with reason and 
justice. But the language is not always clear and, in such 
event, it is the duty of the court to arrive at the intention of 
the lawmakers by studying the context of the act itself, com- 
paring it with other statutes on the same or similar subjects, 
examining its purpose and object and its subject matter, de- 
termining whether words are used in their technical or pop- 
ular signification, and employing the assistance of the title, 
preamble, section headings, and marginal notes. The punc- 
tuation of a statute forms no part of the law. If necessary 
to the sense the word "and" is sometimes read as the dis- 
junctive "or." The courts may refer to the discussions and 
debates at the time the bill was enacted, as preserved in the 
legislative journals, in order to secure assistance in determin- 
ing its true meaning. The questions arising over partial 
repeals, amendments, and other acts covering the same sub- 
ject, are often very puzzling; but their discussion is not 
appropriate to a work of this character. 



CHAPTEK XXXIII. 

PAKLIAMENTAKY AND LEGISLATIVE PKO- 
CEEDINGS. 

Organization — Motions — Principal and Subordinate Questions — Privi- 
leged and Preferred Questions — Amendment and Reconsideration 
— The Vote — Committees — Enactment of Statutes— Approval and 
Veto — Every Man Presumed to Know the Law. 

In self-governing America it is difficult to find a group of 
schoolboys who do not know something about the organiza- 
tion of a legislative body and have not some notion of the 
rules of debate. These rules of debate prevail, in more or less 
modified forms, in the English Parliament, in Congress and 
the state legislatures, and also in societies and associations of 
all sorts, kinds and sizes. Wherever a body of English speak- 
ing people meet together for the purpose of expressing their 
collective opinion upon any subject, these rules of order and 
debate apply from universal custom until they are changed or 
modified by the body itself. A church society, a farmers' 
grange, a popular mass meeting, all follow along the same 
lines, with more or less formality, depending somewhat on 
the importance of the business in hand and somewhat on the 
knowledge of its members in the greater niceties of parlia- 
mentary usage. In dealing with the subject we shall first con- 
sider the elementary rules of order and debate that govern all 
properly constituted assemblies, for whatever purpose called 
together, and then the method of enacting laws prevailing in 
the state legislatures. 

ORGANIZATION. 

Whenever a convention or other assembly comes together, 
the first thing to do is to perfect an organization. Some one 
must take the initiative and call the meeting to order. In 

316 



Parliament aby and Legislative Proceedings. 317 

political conventions this is usually done by the chairman of 
the district committee. Any one else would answer the pur- 
pose as well. Some one then moves that Mr. Jones, for 
instance, act as temporary chairman. This motion is put by 
the self-constituted chairman and the temporary chairman 
assumes the place of honor. A temporary clerk or secretary is 
then named, sometimes tellers, or other temporary officers; 
and often a committee, to pass on the credentials of members, 
is appointed. The meeting being thus temporarily organized, 
a permanent organization is effected, either by electing the 
temporary officers as the permanent officers, as is the usual 
custom, or by choosing others. If the organization is to be of 
a permanent character a constitution and by-laws, providing 
for such matters as quorum, time and place of meetings, offi- 
cers, order of business and the like is usually adopted. Where 
there has been more than one meeting, the usual order of bus- 
iness is: reading and approving minutes of the last meeting, 
reports of standing committees, reports of special or select 
committees, unfinished business, new business. 

MOTIONS. 

All business must be brought before the assembly on 
motion. Communications and committee reports are usually 
received without motion in practice ; but this is only by unan- 
imous consent. If any one object, a motion must be made. 
Before a member of the assembly can make a motion, he must 
obtain the floor. He does this by rising, addressing the chair 
and securing recognition from the chairman by the latter's 
repeating his name. Where more than one person claims the 
floor at one time, the chairman must decide between them, 
and an appeal lies to the body of the house from this decision. 
After the floor has been assigned to a member he cannot be 
interrupted by calls for the question, a motion to adjourn or 
for any other purpose, without his consent, except under 
these circumstances: to have a motion to reconsider entered 
on the minutes, by a call to order, a call for the order of the 
day, an objection to the consideration of the question in hand, 



318 Pabliamentaby and Legislative Pboceedings. 

or a question of privilege. Before a motion is before the 
house it must be moved and seconded and stated to the house 
by the presiding officer. A call for the order of the day, or a 
point of order, need not be seconded. A mover cannot with- 
draw his motion or amendment, if there is an objection, unless 
he effect his object in the form of an amendment, as by a 
motion to strike out the enacting clause of a bill. 

principal, and subordinate questions. 
No principal question can be moved when there is another 
question before the assembly, and the objection that there is 
"another question before the house, " is sufficient objection to 
its consideration until that other question is disposed of. But 
there are a number of subordinate, incidental, privileged and 
related questions that may be considered while the motion is 
pending. The so called subordinate motions are: to lie on the 
table, the previous question, postponement of the considera- 
tion of the question, to send to a committee, to amend, to 
postpone indefinitely, or to reconsider. Incidental questions 
arising in the course of the discussion of the principal ques- 
tion may be : appeals from the decision of the chair, points of 
order, objections, reading of papers, leave to withdraw 
motion, suspension of rules. 

PRIVILEGED AND PREFERRED QUESTIONS. 

Privileged questions take precedence of all others; they 
are: adjournment motions, fixing the time for future adjourn- 
ment, questions concerning the privilege of members, call for 
the order of the day. A motion to adjourn is not debatable and 
is always in order, except when some one is actually speaking 
on the floor, or when it has just been made and lost and no 
other business has intervened. When one or more subjects 
have been assigned to a particular day or hour for considera- 
tion, they become orders for that day and take precedence of 
everything else, except questions of privilege and motions to 
adjourn. Even while a speaker has the floor he may be inter- 
rupted and a motion put under an objection to a further con- 



Parliamentary and Legislative Proceedings. 319 

si deration of the question. If the objection is sustained by a 
two-thirds vote, the subject is dismissed without further 
delay or debate. This often proves a saver of valuable time. 
A motion to suspend the rules is not debatable and cannot be 
amended. A motion to place a bill on the table cannot be 
amended or debated. To move the "previous question" will, 
if carried, shut off all further debate on the question in hand 
and bring the assembly to a vote. It is the origin of the cries 
of "question/' "question" which often illegally but effectively 
interrupt a prolix speaker. Motions to send to a committee or 
send back to a committee, known as motions to "commit" and 
"re-commit" take precedence of motions to amend or indefi- 
nitely postpone. 

AMENDMENT AND RECONSIDERATION. 

A motion to amend takes precedence of the principal 
question and must be decided before the former can be put. 
These questions are not subject to amendment: Mbtions to 
adjourn, orders of the day, all incidental questions, as appeals 
and suspension of rules, motion to lie on table, the previous 
question, an amendment of an amendment, motions to post- 
pone indefinitely and motions to reconsider. A motion to 
postpone indefinitely, once carried, removes the question from 
the assembly for the rest of the session unless there be a vote 
to reconsider. A motion to reconsider, where the vote was not 
by ballot, can only be made by some one who originally voted 
for or against the motion with the prevailing side. 

the vote. 
When the chairman puts the motion, the rules of the par- 
ticular . assembly usually determine how it shall be taken, if 
not, the chairman may, in the case of informal assemblies, 
choose for himself. The vote may be either by ayes and noes 
on roll call, rising, or viva voce. If the latter method be 
adopted, any member may demand a roll call or rising vote. 
In general, a majority vote governs and the chair has a vote 
only in case of a tie. A two-thirds vote is usually required to 



320 Parliamentary and Legislative Proceedings. 

amend or suspend the rules; to make a special order; on an 
objection to the consideration of the question; the previous 
question; or, on a motion to close or limit debate. Tactics 
adopted by a minority to delay or prevent a vote, by the use 
of various methods offered by parliamentary usages, is pop- 
ularly known as "filibustering," and the course of modern 
procedure has been to limit the power of minorities in this 
direction by the introduction of "cloture rules," and the 
"previous question." 

COMMITTEES. 

All the important work of modern legislative bodies is 
done in the committee. Unless a member of Congress or of 
a state Legislature can get himself assigned to a committee 
of importance, his opportunities for influence or distinction 
are limited. It is seldom, in the modern legislative body, 
that eloquence or even logic go for very much. There was 
a time when England, and through England the world, might 
be ruled by the power of oratory. With the decline of the 
influence of the orator, the art of eloquence, also, has de- 
clined. In the committee the most successful and adroit log- 
roller is the man who can bring things to pass. It is, there- 
fore, in these days, more to the public as reached by news- 
paper reports that the speaker addresses himself, than to his 
colleagues, who are often more wearied than edified by his 
highest flights of eloquence. The principal committees are 
usually regular or standing committees appointed at the 
opening of the legislative session to consider all matters that 
come under a particular subject of legislation, such as rail- 
roads, cities, taxation, and the like. There are also special 
or select committees named to consider some particular mat- 
ter in hand, and the "committee of the whole." "When a topic 
comes up which it is desired to discuss informally and in 
detail, the assembly resolves itself into a committee of the 
whole for which the chairman of the assembly appoints 
another chairman, taking himself a seat as an ordinary mem- 
ber of the committee. Committee reports are usually 



Parliamentary and Legislative Proceedings. 321 

received without motion. The adoption of the report makes 
the doings of the committee the act of the assembly. 

ENACTMENT OP STATUTES. 

To pass a valid law, the Legislature must be legally con- 
stituted. Its members must have been constitutionally 
elected, and the body must have been constitutionally con- 
vened and organized. After organization, it is the sole judge 
of the election and qualification of its members. If there 
were two rival organizations, each claiming to be the lawfully 
constituted Legislature, the question would be settled by the 
courts. Each house has the power to make its own rules, 
and the courts will not usually inquire whether or not they 
have been complied with in the enactment of a statute. The 
first step in the enactment of a bill is its introduction. "When 
introduced, it must have a title, subject matter, and an enact- 
ing clause, in order that, when passed, it may become a valid 
law. All bills, except for raising revenue, may originate in 
either house and may be amended, altered, or rejected in the 
other house. Revenue bills must originate in the lower 
house. It is often the practice, when it is wished to expedite 
legislation, to introduce bills which are practically the same, 
one in each house, so that the discussion thereof may be sim- 
ultaneous. Only one of the bills, of course, will be finally 
passed; but both may progress through the different stages, 
and that which is pushed along most expeditiously becomes 
the statute. It is usually necessary, under the rules or the 
Constitution, that each bill, before it becomes a law, shall be 
read three times in each house by sections on three different 
days, and usually an act not so read is void, if the require- 
ment is in the Constitution. In order to be a law the bill 
must be actually passed by the number of members in each 
house required by the Constitution. It may be that a ma- 
jority of all the members present and voting is sufficient, or 
it may be required that a majority of all the members elected 
to either house must vote for the bill; and laws of special 
importance are often required to be passed by a two-thirds 



322 Parliamentary and Legislative Proceedings. 

vote. Whatever the requirements are, they must be com- 
plied with. !Not only the number of votes the bill receives 
is essential. It is also necessary that the votes be given in 
the manner prescribed in the Constitution; this, in the case 
of the final passage of a bill, is usually by ayes and nays on 
roll call, entered in the journal. If there be no constitu- 
tional provision on the subject, the matter must be regulated 
by the rules of the house. In some states the bills as passed 
must be signed by the presiding officer of the house before 
they are valid: in others, even though the presiding officer 
is required to sign the bill, the provision is held directory and 
his neglect is not fatal. After the passage, the bill must be 
presented to the executive for his signature. After the bill 
is once in his hands, the Legislature is without power to 
recall the bill for further consideration, though it is often 
done in practice by general consent. 

APPROVAL AND VETO. 

When the executive receives the bill he may sign it, in 
which case it has become a law and stands as law until re- 
pealed or declared unconstitutional by the courts. On the 
other hand, he may disapprove the bill and return it to the 
house in which it originated with his reasons for his disap- 
proval. This is called his veto. In general the executive 
is only allowed a certain time in which to approve a measure. 
If he allows that time to elapse without action, the bill 
becomes a law without his approval. In some states the 
wording of the Constitution is such that the bill must be 
signed while the Legislature is still in session; in others, that 
unless the bill is signed within a certain time after adjourn- 
ment, it fails to become a law. If the bill be vetoed, the 
executive must usually return it to the house in which it 
originated. The constitutions provide for the passage of bills 
over the veto by the necessary majority, usually two-thirds. 
The bills, after enactment, are usually filed, enrolled,, 
engrossed, etc., in the department of the Secretary of State. 



Parliamentary and Legislative Proceedings. 323 

Each house is required to keep a journal, in which all 
matters relating to the progress of bills and their final pas- 
sage are recorded. In some states the journal entries become 
of great importance, by reason of the fact that the courts 
refer to the journal as authoritative on all questions con- 
cerning the validity of the bill connected with the manner of 
its enactment. In all the states the courts turn to the jour- 
nal for information which may assist them in making an 
intelligent construction of the law. The preparation and 
consideration of bills is in these days largely done in com- 
mittee, and when the proposed acts actually come before the 
house, they are, in many cases, "all cut and dried." 

EVERY MAN PRESUMED TO KNOW THE LAW. 

When a bill is once passed, every man within the jurisdic- 
tion of the law-making power, is presumed conclusively to 
know what the law is. Ignorance of the law is never recog- 
nized as an excuse in a defense. Even courts of equity hesi- 
tate to relieve any one from the results of a mistake of law 
in the absence of fraud. In the old days, a bill was supposed 
to take effect from the first day of the session of the parlia- 
ment at which it was passed. This often worked great in- 
justice. Although the custom was followed by some of our 
Legislatures, it was soon changed by statute and now, unless 
something is said about it, the bill takes effect from the day 
of its passage. It is customary, however, for a bill to contain 
a clause as to its time of taking effect, and this is often from 
the time of its publication. It may happen, however, if the 
law takes effect from the time of its passage, that an act may 
be passed at the capital of a state, and persons very nearly 
affected by it and conclusively presumed to know all about 
it, be in profound ignorance of its provisions. The newspaper 
and the telegraph are of great assistance ; but they are often 
unsatisfactory and unreliable, and the actual official publica- 
tion of the law in question may be delayed some months. 
The statutes are always printed and preserved in bound vol- 
umes which are, of course, readily accessible to lawyers. But 



324 Pakliamentaby and Legislative Proceedings. 

there may be errors in the printed reports, and, in such case, 
the engrossed bill on file with the Secretary of State is the 
final evidence of what the law actually is. But even when 
we know what is the letter of the law, and although we are 
conclusively presumed to know what it means, and whether 
it is or is not constitutional, we are, as has been seen already, 
presumed to know things which it frequently puzzles the 
courts at the end of a long and weary litigation to determine. 
Furthermore, it may happen that part of a statute is uncon- 
stitutional and void, and the rest of it perfectly good. The 
test is not whether the unconstitutional and valid parts are 
in the same section, but whether they are, in fact, so insep- 
arably connected that when the unconstitutional part is elim- 
inated the portion of the act remaining can be said fairly to 
represent the intentions of the Legislature as standing alone. 
If the provisions are so interdependent that the valid pro- 
visions cannot operate effectually, in the absence of the 
unconstitutional ones, the whole act must fall. If that which 
remains is complete in itself and capable of being executed, 
it will be supported, for the courts do not set aside statutes 
as unconstitutional on light grounds, and their object is 
always to sustain a law rather than defeat it. 



CHAPTEK XXXIV. 
PRIVATE RIGHTS UNDER THE CONSTITUTION. 

The Bill of Rights— Bills of Attainder— The Obligation of Contracts — 
Involuntary Servitude for Crime — The State and Religion — Writs 
of Habeas Corpus — Due Process of Law — Privileges and Immun- 
ities — Unconstitutional Laws — Other Constitutional Guarantees. 

The average man knows comparatively little about the 
Constitution of the United States. Most of us studied it in 
school, or refer to it occasionally; but few of us ever pause 
to reflect to what extent our daily lives are affected by the 
provisions of the Constitution of our country, or what blood 
and treasure has been paid as the price of liberties which 
most of us take quite as a matter of course. But no man 
can properly understand what his rights are under the Con- 
stitution in the ordinary walks of life, without something* 
more than a casual reading of those sections of the Constitu- 
tion of the United States which more especially concern the 
rights of the individual citizen. 

THE BILL OF RIGHTS. 

The bill of rights embodied in the Constitution, and a 
large part of which was our heritage from our English ances- 
tors, may be stated as follows: 

No bill of attainder or ex post facto law shall be passed 
by the United States, or by the states. 

No state shall pass any law impairing the obligation of 
contracts. 

Neither slavery nor involuntary servitude, except as 
punishment for crime whereof the party shall have been 
duly convicted, shall exist within the United States, or any 
place subject to their jurisdiction. 

The right of the people to secure their persons, houses, 
papers and effects, against unreasonable searches and seiz- 
ures, shall not be violated; and no warrants shall issue but 

325 



326 Private Rights Under the Constitution. 

upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched and the 
person or thing to be seized. 

No soldier shall, in time of peace, be quartered in any 
house, without the consent of the owner; nor in time of war 
but in a manner to be prescribed by law. 

The right of the people to keep and bear arms shall not 
be infringed. 

Congress shall make no law respecting an establishment 
of religion or prohibiting the free exercise thereof; or 
abridging the freedom of speech nor of the press, or the 
right of the people peaceably to assemble and to petition the 
government for a redress of grievances. 

No person shall be held to answer for a capital or other- 
wise infamous crime unless on a presentment, or indictment 
of a grand jury, except in cases arising in the land or naval 
forces, or in the militia, when in actual service in time of 
war or public danger; nor shall any person be subject for 
the same offense to be twice put in jeopardy of life or limb; 
nor shall be compelled in any criminal case to be a witness 
against himself, nor be deprived of life, liberty or property 
without due process of law; nor shall private property be 
taken for public use without just compensation. 

In all criminal prosecutions the accused shall enjoy the 
right to a speedy and public trial by an impartial jury of the 
state and district wherein the crime shall have been previ- 
ously ascertained by law, and to be informed of the nature 
and cause of the accusation; to be confronted with the wit- 
nesses against him; to have compulsory process for obtaining 
witnesses in his favor, and to have the assistance of counsel 
for his defense. 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishment inflicted. 

The privilege of the writ of habeas corpus shall not be 
suspended unless when in cases of rebellion or invasion the 
public safety may require it. 



Private Eights Under the Constitution. 327 

~No state shall make any law which shall abridge the 
privileges or immunities of citizens of the United States, nor 
shall any state deprive any person of life, liberty or property 
without due process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws. 

The right of the citizens of the United States to vote 
bhall not be denied or abridged by the United States or by 
any state on account of race, color or previous condition of 
servitude. 

BILLS OF ATTAINDER. 

In the days of fierce party strife in England the dom- 
inant faction, on coming into power, was wont to pass in 
Parliament bills of attainder, so called, under which, with- 
out more ado the enemies of the party in power were put out 
of the way of doing further harm to their opponents. Neither 
Congress nor any of the state Legislatures could pass suck 
a law in this country. The trial of offenders must always 
be in the regularly constituted courts having jurisdiction of 
their offense. The Constitution also forbids the passing of 
a law making that a crime which was not formerly a crime 
and giving to that law a retrospective effect so that persons 
might be punished for doing that which, when done, was not 
against the law. Such a law would be known as an "ex post 
facto" law, within the meaning of the Constitution. 

THE OBLIGATION OF CONTRACTS. 

If I agree with my neighbor to do or not to do a particu- 
lar thing, for a consideration, and the thing proposed is 
lawful, there is no power in the state Legislature to pass, 
any law that will interfere with the obligation of either 
myself or my neighbor to carry out our agreement. And if 
such a law were passed it would be the duty of the courts to 
declare it unconstitutional and void. But, suppose, when we 
enter into the contract there is a law in force whereby I can 
compel my neighbor to keep his agreement, and, before the 
time comes for him to keep it, the law is repealed. Is the 
law valid? The Legislature establishes the courts of the state 



328 Pkivate Eights Undeb the Constitution. 

and fixes their jurisdiction. It prescribes the proceedings 
of courts, and the remedies by which damages may be recov- 
ered by those whose contracts have been broken. It has the 
right to change those laws. It has the right to alter them 
so that the work of compelling my neighbor to fulfill his 
agreement is made vastly more difficult. It has not the 
right or the power to destroy my contract under pretense of 
altering the remedy, or to take away all remedies, though 
ostensibly leaving the contract in full force. As long as I 
have a legal remedy left me, however, though it be cumber- 
some and difficult, the act is valid and I must take the rem- 
edy that is given me, if it be in fact a legal remedy. 

The question concerning the constitutional restriction 
upon the impairment of contracts has usually arisen when 
the Legislature has sought to abridge the privileges of cor- 
porations which have secured public franchises. Where such 
a privilege has been secured, and people have invested their 
money in large amounts in the enterprise on the faith of it 
(which they would lose if the Legislature were to take away 
the rights conferred) the courts have held that, as a rule, 
contract obligations are impaired, and that if the people wish 
to get back what they have granted away they must pay the 
market price for it. Were it not for this constitutional pro- 
tection railroad bonds, or the bonds of any other public serv- 
ice corporation, would be an insecure investment. 

INVOLUNTARY SERVITUDE! FOR CRIME. 

Slavery being abolished, there can only be involuntary 
servitude for crime. Where such servitude is performed 
for the state it is undoubtedly legally required. In fact the 
keeping of prisoners in idleness has come to be thought one 
of the worst of cruelties. At the same time to so employ 
the prisoners that their labor comes into competition with the 
labor of free men who have families to support, has resulted 
in an evil which, in many states, has been made the excuse 
for laws forbidding any such employment of labor. In some 
Northern and Western states it has been a practice to permit 



Peivate Eights Under the Constitution. 329 

private corporations to establish factories at the state penal 
institutions, and thus use the labor of those sentenced to 
penal servitude, making compensation to the state therefor, 
which is applied to the support of the prisoners. Some of 
the Southern states have gone a step further and permitted 
their prisoners to be "farmed out" to work for private indi- 
viduals. How far either of these practices is legal under 
the Constitution remains to be tested; but the abuses to which 
the latter is subject have recently been the subject of judi- 
cial investigation in South Carolina, and in Georgia the con- 
stitutionality of the law has been sustained. So long as such 
practices are not merely covers for the revival of slavery in 
a modified form they are probably not open to legal objection. 

the state and religion. 

There is and can be no state religion. Even though chap- 
lains may be appointed to Congress, the army and navy, the 
Legislatures and the public penal institutions, no one can be 
compelled to attend the services against his will, and there 
is nothing to prevent the appointment of Jewish or Moham- 
medan chaplains. In fact, in some institutions where Jewish 
prisoners happen to be confined, Jewish chaplains have been 
appointed. The church organizations are recognized under 
the law as civil institutions, and their property rights reg- 
ulated and protected, but their religious polity cannot be 
interfered with under the Constitution. Sunday laws prevail 
in many states, but Sunday, under state laws, is a civil and 
not a religious holiday. The right to worship is recognized 
and protected, and disturbing a religious meeting would be 
an offense almost anywhere, but how to worship or where to 
worship, or what or whom to worship, the state cannot say. 
The state may pass laws against polygamy, or any other prac- 
tice conducted under the cloak of religion, which is against 
the moral welfare of the state. No man can claim the pro- 
tection of the Constitution in an immoral or criminal practice, 
on the ground that it is a part of his religion. 



330 Private Eights Under the Constitution. 

writs of habeas corpus. 

The writ of habeas corpus is a remedy peculiar to the 
institutions of our ancestors, and is one of the bulwarks of 
liberty. The writ is directed to any person detaining any 
other person and commanding him to produce the body of 
the person detained, at a certain time and place, and then 
and there produce also the authority whereby he holds the 
other in custody. Its object is to prevent illegal restraint. It 
is not to punish any one for wrong doing, or to give dam- 
ages to the person aggrieved. These objects can be secured 
by other proceedings. The purpose of habeas corpus is sim- 
ply at once to release any person illegally imprisoned. That 
is as far as it attempts to go, but by going that far it was, in 
the days of tyranny, a terror to tyranny, and in the days of 
freedom it remains an effective and speedy remedy for un- 
just arrest, and one that is in daily use throughout the country. 

The application for the writ is made by the prisoner him- 
self, through his attorney, unless the nature of his confine- 
ment is such that he cannot make it. In that case it can be 
made by any one on his behalf. To make a case there must be 
actual confinement and present means of enforcing it. The 
ground on which the imprisonment is claimed to be illegal 
should be stated. If it be shown that there is even probable 
cause for supposing that the confinement may be illegal, the 
judge has no discretion and must grant the writ and look into 
the matter. The only question before the court on the return 
of the writ is whether the imprisonment is legal. A warrant 
for arrest which is regular and fair on its face and issued by 
a court which has jurisdiction is sufficient. The purpose is 
not to try the guilt or innocence of the accused, but to deter- 
mine whether or not he is legally confined. On the other 
hand, if the confinement be illegal, the greatest scamp un- 
hung would be entitled to his release. 

DUE PROCESS OF LAW. 

As the writ of habeas corpus is the great safeguard of 
personal liberty, the demand of the Constitution that "due 



Pbivate Eights Under the Constitution. 331 

process of law" be taken before one can be deprived of life, 
liberty or property, is potent to protect private property as 
well. It is not confined to legal proceedings, but extends to 
every branch of the civil government. As applied to legal 
proceedings it, of course, implies that the court be 
one of competent jurisdiction, and that its proceedings fol- 
low the course of the rules and principles which have been 
established in our system of jurisprudence. Any other pro- 
ceeding by which it is sought to take property or liberty must 
at least have been commenced with due notice thereof to the 
party affected, and a hearing pursuant thereto at which he 
may have an opportunity to present his side of the case. No 
proceeding which seeks to restrain liberty, or acquire prop- 
erty, can be "due process of law" which does not include both 
a notice and a hearing. The notice may be either actual, or 
what is called "constructive" notice. If a man has gone to 
parts unknown, or is in hiding where notice cannot be served 
upon him, his property rights may usually be affected if the 
efforts to serve notice upon him prescribed in such cases, as 
by letters and advertisements, are followed and his property 
is at the same time taken by the law. The hearing must be 
one at which the person affected will be given a fair and rea- 
sonable opportunity to protect, defend and enforce his rights 
by establishing any fact, which, under the law, would be a 
protection to him or to his property. The protection afforded 
to liberty is not only immunity from imprisonment without 
due process of law; it requires that a man should be free to 
enter what profession or calling he chooses, to travel, to live 
and work where he pleases, and to use his faculties in all law- 
ful ways. There are three powers of the state which may 
interfere with a man's liberty or his property. They are 
known as the power to tax; the power to take private prop- 
erty for public purposes, and the police power of the state; 
that is, the power to protect the safety, health and morals of 
the community. Each of these powers are considered in sep- 
arate chapters. Though how far the state may interfere with 



332 Pkivate Rights Undek the Constitution. 

the liberty or property of the individual for the public good 
is always a nice question, the general rule is simple enough; 
a man may do as he pleases so long as he does not interfere 
with any one else; when he does, the state has the power 
to regulate that interference. 

PRIVILEGES AND IMMUNITIES. 

Any legislation which tends to make a privileged class of 
citizens, tends to abridge the privileges and immunities of the 
rest; and it is under this theory that attempts by the Legis- 
lature to enact what is termed class legislation, have been 
held unconstitutional. But this constitutional restraint does 
not extend to the proper regulation of trades, callings and 
business generally in the interest of the public safety, morals 
or health. It should be noticed, moreover, that it is the priv- 
ileges and immunities of citizens that the states are prohib- 
ited from abridging. Persons who are not citizens are not 
thus protected. It is under this theory that the restraints 
upon immigration are enacted. The state owes no duty to 
the foreigner, and the latter has no legal right to maintain 
his residence in a country of which he is not a citizen. In 
this country immigration has been welcomed where the immi- 
grants were of our own race, but races are often too dissim- 
ilar to permit their living together in harmony under one 
government. Whatever their policy, such laws as those 
which prohibit the immigration of Chinese are undoubtedly 
constitutional. 

UNCONSTITUTIONAL, laws. 
In this connection it may be well to say something of the 
power of the courts to declare acts of the Legislature uncon- 
stitutional and therefore void. In the popular mind there 
is apt to lurk the notion that any law which does violence to 
present public sentiment, or which seems unjust and oppres- 
sive, is unconstitutional. The notion is an unconscious tribute 
to the great beneficial power of our Constitution; but, as a 
matter of fact, there is no power in the judiciary to set aside 



Private Bights Under the Constitution. 333 

laws as unconstitutional simply because they are obnoxious, 
or unpopular. An act is not unconstitutional unless it vio- 
lates some provision of a federal or state Constitution. It 
often happens that judges are compelled to enforce statutes 
which they do not like, and the purposes of which they do not 
approve, and they are often very ingenious in finding some 
phrase in a state or the national Constitution to which they 
can plausibly argue the law to be obnoxious and therefore 
void. But if they cannot find a constitutional reason for set- 
ting aside the law it must stand. 

other constitutional guarantees. 
Other guarantees in our constitutional bill of rights have 
been passed over without special explanation, either for the 
reason that the subjects which they concern are fully covered 
in other chapters, or because they are sufficiently self explan- 
atory for a work of this character. As there has been no 
state of war in America for more than a generation, the 
question of quartering soldiers is not of practical importance 
at this date. The right to bear arms is of course subject to 
the rights of others, and therefore to regulation by the state. 
A man cannot carry loaded weapons in a crowded city street, 
when he might do so with perfect safety in a forest. The 
inhibition against cruel and unusual punishments received a 
curious illustration in the state of New York, where it was 
held, after an interesting legal controversy, that the execu- 
tion by electricity of criminals condemned to death was not 
"cruel and unusual," within the meaning of the Constitution. 
The provision against unreasonable searches and seizures 
would prevent any man from coming into my house to search 
for property known to be his, and by me kept unlawfully, 
without a proper search warrant. It is one of the private 
rights often violated in the days of old, but which has in our 
day been held so sacred that we have come to regard it as a 
matter of course. 



CHAPTEE XXXV. 
STATE REGULATION OF PRIVATE RIGHTS. 

State Care of the Insane — Trades and Professions — Milk and Butter — 
Other Regulations of Sales — Private Business Affected with a 
Public Use — Hours of Labor and "Wages — Trusts, Strikes and 
Boycotts — Municipal Ordinances — Regulation of the Liquor Traf- 
fic — Federal Exercise of and Restrictions upon the Police Power. 

The right of the state so to regulate its internal concerns 
that the enjoyment by each citizen of his own rights shall 
not interfere with the enjoyment of their rights by others, 
is called the "police power" of the state. All matters which 
concern the public health, safety, and morals of the commu- 
nity are subject to be regulated under this power. These 
police regulations must necessarily impose burdens and 
restraints upon personal liberty and private property. How 
far this control may go it is the province of the courts to 
determine, and they often find it a vexing question. To the 
popular mind the power of police regulation conveys the 
notion of men with blue coats and brass buttons patrolling a 
beat; but the legal term "police power" is used in a much 
broader significance. It includes not only matters which 
might bring an offender before the criminal courts, but also 
the regulation of innumerable private concerns. In this chap- 
ter we shall treat of such private rights as fall under the 
domain of the state's police power, and in that succeeding of 
such general functions as the state assumes in order to guard 
the public health and safety, its morals and its education. 

STATE CARE OP THE INSANE. 

It is dangerous to the public that persons of unsound 
mind should be permitted to go at large. They have com- 
mitted no offense against the laws, and the gradations from 

334 



State Eegulation of Pkivate Eights. 385 

mental soundness to unsoundness are so imperceptible as 
often to puzzle the most learned physician. Yet the right 
of the state through its proper officers to place in confinement 
and subject to medical treatment those who are mentally 
unsound, or those who are suffering from contagious dis- 
eases, is unquestioned. But no man can be seized and placed 
in a hospital or asylum on the ground that he is insane if he 
has done nothing because of his unsoundness that offended 
against the law. Were such a course pursued the person so 
deprived of his liberty would be released at once upon habeas 
corpus. The statutes of every state provide the strictest 
regulations for determining the question of the sanity or 
insanity of the person whose liberty is sought to be taken, 
and such statutes, to be constitutional, must provide the 
notice and hearing necessary to constitute a "due process of 
law." The application is usually made by some friend or 
relative, which sets the machinery of the law in motion. Of 
course, if the insane person is willing to go, he is often taken 
to some private asylum, but the admission of patients to state 
hospitals is seldom permitted without some sort of legal pro- 
cess, however informal and private in character it may be. 
Habitual drunkards, habitual criminals, vagrants, and mendi- 
cants are often confined under similar provisions in various 
institutions. The state also has control of minor children who 
have lost their parents and who would grow up mere waifs 
and vagabonds if it were not for state interference. In fact, 
the state owes this duty to all classes who, from excessive dis- 
ability, are unable to care for themselves. 

TRADES AND PROFESSIONS. 

"While every man may follow what calling he chooses and 
the state cannot in any way limit or direct that choice, it 
may, on the other hand, regulate the manner of conducting 
the trade itself wherever the protection of the public inter- 
ests or the public welfare demands it. Wherever the trade 
or calling demands the exercise of special skill and the public 



336 State Regulation of Private Rights. 

interests require that whoever practices it should possess 
some degree of the skill necessary to his craft, the state may 
take measures to secure public protection. It is on this the- 
ory that druggists, engineers, plumbers, and the like, are 
required to procure a license before practicing their calling. 
In some states the Legislatures have sought to carry this 
power of regulation very far, and the test of the constitu- 
tionality of such laws is whether the public safety can prop- 
erly be said to require them. In the matter of the learned 
professions, there is no room for doubt. In almost every state 
attorneys and physicians must serve an apprenticeship, 
whether or not it is called by that name, and must pass 
severe examinations before being admitted to practice. In 
the same way dentists, oculists, aurists, and, usually, public 
school teachers, must be able to produce the proper diplomas 
and credentials before being permitted by the state to enter 
their respective professions. 

MILK AND BUTTER. 

Most of the states prohibit the sale of adulterated milk, 
and of oleomargarine as butter. Such statutes are enacted 
under the police power and are constitutional. In the case of 
milk it is often provided that it must meet certain chemical 
tests, or it will be presumed to be adulterated. If the milk 
fall below the standard fixed the statute is violated, no matter 
whether the producer or person who was vending the milk 
was guiltless of any actual adulteration. The theory of the 
law is that the milk must be of a certain standard of purity 
and excellence to be sold at all, and that the public health and 
safety require the standard fixed by law. In the case of 
oleomargarine, the rule is different. Unless that product can 
be proved to be in itself harmful to the public, the better 
authority is to the effect that the law cannot constitutionally 
take away the right to sell it. Most of the statutes make it 
an offense to sell oleomargarine as butter, but do not prohibit 
its sale if it be labeled oleomargarine. As people would not 



State Begulation of Pbivate Eights. 337 

generally buy oleomargarine in sufficient quantities to make 
its manufacture profitable under such a restriction, the object 
of the law is accomplished, and at the same time it is made to 
rest upon a sound legal foundation, for the Legislature 
clearly has the power to prevent the deception of the public 
by the sale of a spurious article as butter. Other laws pro- 
hibit the coloring of oleomargarine to look like butter, and 
accomplish the same object under the same theory. 

other regulations of sales. 

Under the right to protect public health or prevent 
deception statutes are enacted in many states forbidding the 
coloring of vinegar, the marking as "sterling" of articles of 
silverware which do not contain the proper proportion of the 
precious metal, the sale of second hand bottles with blown 
labels indicating the business of the original owner; adver- 
tising clothing for sale as "bankrupt stock/' and similar prac- 
tices calculated to deceive the public. Statutes have been 
held to be a constitutional exercise of the police power under 
this head which provide for the inspection and grading of 
flour, tobacco inspection, the testing of weights and measures 
by a public inspector, restricting the weight and quality of 
bread, providing public scales for the weighing of coal and 
other heavy articles such as hay, straw, grain, and the like. 

Under the same purpose of public protection the state 
undertakes a supervision of banks and insurance companies; 
requires persons doing business under a name other than 
their own to file in a proper office the name of the person 
or persons who are in fact responsible for the business. 

PRIVATE BUSINESS AFFECTED WITH A PUBLIC USE. 

One of the more recent and beneficial extensions of the 
police power is that of the regulation of prices and charges 
to the public made by corporations which exercise public 
franchises. Men in their private dealings may charge what 
they like for their wares and get the best price they can. It 
would popularly be regarded as terrible tyranny if the Leg- 



338 State Eegulation of Private Eights. 

islature undertook to reduce peas, beans or potatoes, shoes 
or underwear below trie price for which they could otherwise 
be sold. But where, from the nature of the business it is 
necessarily a monopoly, and where it is also of a nature such 
that it could not well be carried on at all without exercising 
powers which are essentially governmental in the form of a 
franchise, the courts hold that the business in question is 
"affected with a public use" and that the public has rights 
which the Legislature has the power to protect. This has 
been extended a step further and it is probable that any 
business which is a natural monopoly is subject to regulation 
by the Legislature, whether it require assistance from the 
public in the form of a franchise or not. This was held in the 
famous case of "Munn against Illinois," a case as important 
to the privileges of the people as was that of "Dartmouth 
College against "Woodward," where franchises were declared 
contracts within the meaning of the Constitution, to corpora- 
tions. In this case Chief Justice Waite of the United States 
Supreme Court said: "Property becomes clothed with a pub- 
lic interest when used in a manner to make it of public con- 
sequence and affect the community at large. When, there- 
fore, one devotes his property to a use in which the public 
has an interest, he, in effect, grants to the public an interest 
in that use, and must submit to be controlled to the common 
good to the extent of the interests he has thus created. He 
may withdraw his grant by discontinuing the use; but, so 
long as he maintains the use he must submit to the control." 
The particular case under consideration was the attempt by 
the state of Illinois to regulate the charges to customers hy 
the corporations owning and conducting grain elevators. The 
right of the state to regulate railroad fares and freight 
charges, ferry rates and bridge tolls, and a dozen other mat- 
ters, rests upon similar considerations. 

HOURS OF LABOR AND WAGES. 

Various statutes have been enacted attempting to affect 
the hours of labor and to reduce the length of the working 



State [Regulation of Private Eights. 339 

day. Where public work is concerned, they have been upheld 
by the courts, but they have never been extended to the reg- 
ulation of private business. If, however, the employment be 
in itself unwholesome and the employment for long hours 
seriously detrimental to health, statutes limiting the hours of 
workmen in that particular field of labor have been upheld 
as constitutional. The employment of children in factories, 
the provision of suitable wash rooms and sanitaries, the safe- 
guarding of machinery, and numerous other requirements 
and regulations, are prescribed by the state factory laws and 
are often enforced by a system of state factory inspection. 
Many states have enacted laws regulating the time of pay- 
ment of workmen, demanding weekly payments, forbidding 
corporation stores, giving preference to workmen over other 
creditors, exempting the tools of workmen from levy and sale 
under execution for their debts, and, in many other ways 
regulating the relations between employer and employee. Of 
a similar character are the sweatshop and tenement house 
statutes, regulating the homes and places of business of the 
poorer classes in the large cities. 

TRUSTS, STRIKES AND BOYCOTTS. 

Under the general scope of the police power are included 
the statutes against trusts and trade combinations on the one 
hand, and the laws which forbid boycotts and restrain lawless- 
ness in the methods of strikers on the other. The laws 
against the great combinations have generally proved futile, 
as there is little difficulty in evading them, and the formation 
of such combinations appears to be a part of the progress of 
the present day and generation. The state has lately come 
to realize that it is not so much the public at large as that 
portion of it which is induced to invest in the generally 
watered stock of these enormous combines that needs pro- 
tection, and statutes will undoubtedly in the end be passed 
providing for their inspection and regulation by the state, 
in the same way as banks and insurance companies are now 
to a large extent placed under state supervision. 



340 State Kegulation of Pbivate Rights. 

But it is unlawful for any set of men to combine together 
to force up the price of any commodity, and is an indictable 
conspiracy at common law. It was also an indictable con- 
spiracy for workmen to combine together to force up the 
price of wages. This is no longer the law. Trades unions 
are recognized by the courts and Legislatures, and laws are 
often provided for their incorporation. Members who ha ye 
been illegally ousted from such organizations can compel 
their restoration to good standing in the courts, where there 
are any sick benefits or other property rights interfered with. 
In the great and irrepressible conflict between capital and 
labor, combinations on either side tend to restrict individual 
liberty. Strikes are lawful so long as strikers keep within 
the bounds of peace and persuasion, unaccompanied by 
threats or intimidation. No man is bound to work for 
another unless he choose. But if large bodies of men com- 
bine together to prevent others from securing work, or to 
injure the trade of a merchant or manufacturer, there is 
usually held to be an unlawful conspiracy. The attitude of 
the courts with regard to boycotts presents a curious anomaly. 
I have the right to refuse to buy of a tradesman myself. I 
have the right to tell my friend that I do not like that trades- 
man for reasons of my own, and that my friend would do me 
a favor by refusing to trade with him also. These acts are 
in themselves lawful; yet if I form a large combination of 
my friends and acquaintances into a powerful society and we 
all refuse to trade with that tradesman, and persuade our 
friends and the public at large to do likewise, we, as a com- 
bination, effect the ruin of his business, and, though the indi- 
vidual act of no one of us is in itself unlawful, the combined 
action of our organization is an illegal conspiracy. We have 
by means of our combination of lawful acts produced an 
unlawful result and ruined a fellow citizen in his business, 
making it impossible for him to earn his living. In spite of 
their unlawful character boycotts are generally practiced and 
are difficult to restrain. Yet the laws restraining them, 



State Kegulation of Private Eights. 341 

though they infringe upon the undoubted liberty of the 
individual, are constitutional under the police power. 

While "blacklists" are common both to labor organizations 
and to employers, another quite distinct class of citizens has 
attempted similar methods for very different ends. Women 
who wish to ameliorate the condition of working girls in 
department stores and factories have in recent years under- 
taken the preparation of "white lists." They appoint com- 
mittees to visit stores and shops and to report such tradesmen 
as meet with their approval for patronage by the members 
of their organization. The "white lists" are probably legal, 
but they have many of the illegal elements of the boycott. 

The fact of the matter is that the world in concerns of 
this sort is moving a little faster than the courts can follow. 
If the citizens of a municipality become disgusted with the 
exactions of some grasping public service corporation, and 
agree among themselves to one and all refuse to ride in its 
cars, to use its gas, to buy its electricity, or agree on a certain 
day to hang up their telephones and order them taken out, 
all the legal results of a boycott should lawfully follow, yet 
the courts would scarcely undertake to enjoin a whole town 
or to indict a whole countryside for conspiracy. The mere 
fact of the numbers involved would present no legal diffi- 
culty. Dragnet injunctions are often granted to restrain 
large bodies of workingmen from unlawfully interfering with 
the former business of their employers, and the powers of 
the court are often backed by the military forces of the gov- 
ernment. Any more extended analysis of these interesting 
questions is beyond the scope of this work. 

MUNICIPAL ORDINANCES. 

In the thickly populated suburban sections, and in the 
cities where the dwellings of people are crowded close 
together, there is necessary a greater restraint upon indi- 
vidual action for the good of the community than exists in 
the rural districts. The state, therefore, delegates to the 
municipalities its ample police power for the regulation of 



342 State Regulation of Pkivate Rights. 

internal concerns. Many acts which might be a lawful exer- 
cise of personal liberty in the country, are, in the city, illegal. 
£To Legislature could, for instance, under pretense of an exer- 
cise of its police power, prevent a man from pasturing his 
cows on his own farm. Yet the title of a man to do as he 
pleases on his property is no greater in the country than in 
the city; but the Legislature and its agents does prevent the 
pasturing of cows in a man's back yard in a city lot where 
such use of the property would be offensive to his neighbors. 
Lawmakers would not think of compelling the building of 
brick houses in the country or suburbs, and yet the danger 
to other buildings from fire may be such that in the heart of 
a great city the construction of wooden buildings might well 
be prohibited, and most cities have ordinances strictly regu- 
lating the construction of both private dwellings and business 
blocks. Some notion of the difficulties and intricacies of the 
law in a civilized state of society may be appreciated when it 
is understood that a law for one section of the community 
may be entirely proper and constitutional, and the same law 
for another section of the state improper and unconstitu- 
tional. 

regulation of the liquor traffic. 

Under the police power the state may regulate any trade 
or calling which involves the health or safety of the commu- 
nity. We trust that this principle has been made clear, and 
that the legal foundations upon which it rests are now under- 
stood. We have seen some of its minor applications, but the 
great problem is presented by the liquor traffic. That it is 
subject to the police regulation of the state is everywhere 
conceded, and it is everywhere regulated to a greater or less 
extent. In a few states its regulation takes the form of abso- 
lute prohibition. In one Southern state the government 
supervision is exercised to such an extent that it almost 
becomes itself the liquor dealer. Most of the statutes take 
the form of a combined police regulation and tax law. Unless 



State Regulation of Pkivate Rights. 343 

there be absolute prohibition on the one hand, or absolute 
government control and practical government monopoly on 
the other, the regulation will take the form of some sort of 
tax or license system. But the primary object of the law is 
not the raising of a revenue but the regulation of a business 
dangerous to the public health and morals. Even in the 
same state, prohibition may prevail in some sections, and 
what is called "local option" in others, and the residents of 
the locality express their choice of the system of regulation 
at the polls. Laws prohibiting the sale of liquor to minors, 
to men whose wives have notified the dealer not to sell to 
their husbands, to Indians; laws which forbid the sale of 
liquor in the same store with groceries, which require the 
exposure of a license in a conspicuous place, which prohibit 
the conduct of a saloon within a prescribed distance from a 
school or church, which require the consent of adjoining 
property owners, are among the innumerable regulations and 
restrictions of the traffic. 

FEDERAL. EXERCISE OF AND RESTRICTIONS UPON THE 
POLICE POWER. 

In so far as the Constitution has conferred the power upon 
Congress, either expressly or impliedly, the power may be 
exercised; but except as thus conferred there is no such power 
residing in the national government. Unless the exercise of 
a particular police power is granted to the United States, 
expressly or by necessary implication, the power resides in 
the state government, unless the state constitution prohibits 
its exercise. The police powers of the United States are 
most largely employed in the acts which regulate the com- 
merce between the states, known as the Inter-State Com- 
merce acts. Where these acts come into conflict with the 
exercise of the police power by the state, the latter must 
yield. This was illustrated by the famous "original package" 
decision which practically nullified the prohibition of the 
liquor traffic in Iowa. That state sought to prevent the im- 
portation of liquors into its territory from other states. The 



344 State [Regulation op Pbivate Eights. 

United States Supreme Court held that as long as the liquors 
were encased in the original packages they must be permitted 
to enter the state and be delivered to their destination. It 
was only when the original packages were broken open on 
arrival at their destination that the state law could apply to 
them. In the course of his opinion on this subject Judge Ful- 
ler said: "The conclusion follows that as the grant of power 
to regulate commerce among the states, so far as one system 
is required, is exclusive, the states cannot exercise that power 
without the consent of Congress, and, in the absence of leg- 
islation, it is left for the courts to determine when state action 
does or does not amount to such exercise, or, in other words, 
what is or is not a regulation of such commerce. When that 
is determined, controversy is at an end." 



CHAPTEE XXXVI. 

BUSINESS ENTERPRISES OF THE STATE. 

The Post Office— Schools— Boards of Health— Fire and Police Depart- 
ments — Enterprises which may be both Public and Private — 
Water Works— Gas and Electric Light Companies— Street Rail- 
ways — Where to Draw the Line — Law and Political Science. 

We have seen that where a private business is affected 
with a public rise and the rights of the public are interfered 
with in that use, the state, under the more modern decisions, 
may step in and regulate that business, even to the extent of 
fixing reasonable charges for the commodities which it con- 
trols, and that power has been extended not only to such 
enterprises as required government assistance in the form of 
franchises, but to the regulation of charges by the corpora- 
tions or individuals controlling grain elevators, which busi- 
ness was held to be affected with a public use, although it 
required no public franchise for its operation and was man- 
aged and controlled entirely by private capital. We are now 
about to inquire what business enterprises are so far affected 
with a public use that the government either does actually 
manage them itself, or may in the near future undertake 
their management. 

THE POST OFFICE. 

A business which is now conducted exclusively by the gov- 
ernment all over the civilized world is the post office. By our 
Constitution the establishment of post offices and post roads 
is among the enumerated powers of Congress. Under our 
postal system the power is conferred upon the Postmaster 
General to make whatever rules and regulations may be 
necessary for the proper conduct of the mail service, not 
provided for by statute. He is the officer who has charge of 

345 



34:6 Business Enterprises of the State. 

the establishment of post offices. Postmasters are divided 
into four classes, according to the importance of the offices of 
which they are to have charge. Those of the fourth class 
are appointed by the Postmaster General, and the officers of 
the first three classes are appointed by the President, by and 
with the advice and consent of the Senate. All mailable 
matter is divided into four classes, written matter, periodical 
publications, miscellaneous printed matter, and merchandise, 
and the rates for the different classes of matter are fixed by 
statute. The postal system has been extended to the sending 
of money through the mails by means of registered letters 
and postal money orders. Offenses against the postal laws, 
such as sending obscene matter through the mails, opening 
letters belonging to other people, and obstructing the mails, 
are provided for by United States statutes and are triable in 
the United States courts. The national government has not 
as yet in this country extended its function to the manage- 
ment of railroads, telegraphs or telephones, although this is 
done in some foreign countries and may in time come about 
here. As we have seen, the government already exercises 
over them large powers of supervision and control. 

SCHOOLS. 

The management of public education was until the last 
century a matter of private concern, though public schools 
existed in some countries many years before the pilgrims 
sought to colonize !N~ew England. In America it is a well 
recognized function of the government. In the settlement 
of the public land the United States appropriated the pro- 
ceeds of one section out of every thirty-six in a township to 
school purposes, one of the most magnificent gifts to public 
education ever undertaken by any government. In most of 
the states a public school teacher is by law required to acquire 
an official certificate of qualification before becoming eligible 
to employment. Teachers are sometimes employed by con- 
tract, and sometimes their positions are in the nature of pub- 



Business Enterprises of the State. 347 

lie offices. The legal school age of children is usually fixed 
by statute, and many states pass laws compelling the attend- 
ance of children at the public schools when of school age and 
not otherwise provided for in private or parochial schools. 
Parents who are non-residents of the district are generally not 
permitted to send their children to the local schools without 
special permission from the school trustees, and are often 
required to pay for such permission, on the theory that they 
are not taxed for the support of the schools. In the South- 
ern states it is customary to provide that colored children 
shall not attend the schools that white children attend. If 
the colored schools are afforded equal privileges and facili- 
ties no constitutional rights are violated. On the other hand, 
some states in the Korth prohibit such discrimination in their 
constitutions. It is the duty of the teacher to maintain dis- 
cipline, and enforce the rules and regulations of the school, 
and he may inflict reasonable corporal punishment upon chil- 
dren where it is necessary to preserve order. The school 
directors have the power to expel or suspend children from 
the school upon proper cause. Although the reading of the 
Bible at the opening of the school exercises has often been 
attacked, it is generally upheld as constitutional, although 
many states have abandoned the practice as a matter of pol- 
icy. The school authorities have the right to say what text 
books shall be employed, and that they shall be uniform. 
Some states provide for the giving of free text books, pur- 
chased for that purpose at the expense of the state. School 
districts are political divisions of the state, formed for the 
purpose of maintaining the schools and for no other purpose. 
Such a district can exercise no powers which are not expressly 
conferred upon it by statute. The care, keeping and repair- 
ing of the school houses belonging to the district falls to the 
duty of the district school board, and the directors may gen- 
erally supply the minor necessaries of school maintenance 
without special authority from the district. In most states 
there is a state superintendent of public instruction who exer- 



348 Business Enterprises of the State. 

cises a general supervision of the school affairs of the state. 
School directors, trustees, committees and boards of educa- 
tion are generally elected in each district under regulations 
prescribed by the Legislature, and in many states women are 
eligible to serve upon them. The funds for the support of 
the public school system are generally provided by the Con- 
stitution. In the "Western states these funds were created, as 
already said, by the grants of land originally made by the 
government, and the income arising from these funds, 
together with state and individual endowments, and money 
derived from taxation and other sources, is applied to the 
support of the schools. Often the tax systems include both 
local and state taxes, and jealousies often arise over the dis- 
tribution of state school funds among the districts. 

BOARDS OF HEALTH. 

Aside from the numerous statutory regulations tending to 
preserve the public health, there are throughout the country 
national, state and local boards of health which are often 
vested with summary and sometimes with what might in the 
abuse be arbitrary powers. Power is usually delegated to 
cities to establish local boards of health and these, with the 
subordinate local boards in country districts, are usually 
entrusted with the functions of preserving vital statistics, and 
even with the enactment of ordinances which have the force 
of laws in the localities affected. They are usually vested 
with powers to isolate persons affected with contagious dis- 
eases, establish local quarantines in time of epidemic, declare 
and abate nuisances, inspect plumbing, condemn buildings, 
and in fact to affect private rights to an extent which could 
not be permitted under the Constitution on any other ground 
than that of the preservation of the public health. It is 
usual to have health physicians appointed who treat the dis- 
eases of the poor free of charge, thus affording another illus- 
tration of the manner in which the state may undertake what 
is strictly speaking a private business. 



Business Enterprises of the State. 349 

fire and police departments. 

In every town where there is anything worth burning, 
there are some sort of public precautions against fire. In the 
smaller places fires are extinguished by volunteer companies, 
it being recognized that a fire is so far a matter of public 
concern that it is the duty of all to assist in fighting the 
flames. As a place grows larger it becomes necessary to have 
appliances especially adapted and men trained for the pur- 
pose. In the larger towns the insurance companies some- 
times undertake to furnish men whose duty it shall be to 
save property covered by insurance, while the public func- 
tionaries are extinguishing the flames. 

To the police officer is delegated the public duty of pre- 
serving the public order and safety in time of peace, just as 
the soldier represents his country in time of war. It is for 
this reason that they are often popularly called "peace offi- 
cers." This is an obviously governmental function, and yet 
private companies often establish bureaus of private police 
and private detectives, who may be hired by those having 
need for their services and yet not such need that they are 
entitled to the assistance of the public police in their affairs. 
Here again we have private enterprises in what is obviously 
the public business. 

ENTERPRISES WHICH MAY BE BOTH PUBLIC AND PRIVATE. 

In the various functions of government which are univer- 
sally recognized as such, we have found that private persons 
have the facilities for doing some if not all of the work. If 
the government did not have a post office, the express com- 
panies would have one established inside of twenty-four 
hours. Public schools have not yet driven out private schools. 
Both exist side by side. If the public did not undertake the 
prevention of fires the insurance companies would have to do 
it or go out of business. In times of strike, riot or disturb- 
ance it often becomes necessary for private individuals and 
corporations to hire private police to protect them. Pew 



350 Business Entebpbises of the State. 

would contend, however, that the government should abandon 
such enterprises to private concerns. 

We now come to a class of enterprises which are under- 
taken by the government in some places, and are delegated 
to private individuals and corporations in others. An Amer- 
ican town has sprung suddenly out of the wilderness, a min- 
ing camp in a few months finds itself a thriving city. It is 
without waterworks, sewage system, lights for its streets, or 
means of local travel. All its available capital is needed for 
the building of bridges, the laying out of roads, the paving of 
streets, the erection of public buildings and schools, and the 
establishment of police, fire and health departments. Pri- 
vate companies are formed and offers are made to build the 
system of water works, to provide the lights both for public 
streets and private homes, to establish street car lines, and 
give the city at once all the comforts of civilization without 
the expenditure of a dollar of the public money, and to bring 
private capital to invest in the town for the purpose. The 
proposition is tempting. The investors are to take the risk, 
and the town is to get the benefits. The franchises are given 
cheerfully. The money is invested. The town grows rapidly. 
After a time it finds that the people are paying a good deal 
more for their water than they ought to be charged; that its 
quality is not what it should be, nor its quantity sufficient; 
that it is costing more to light the streets than the interest 
on the money to establish a municipal plant would come to; 
that the people are being charged double what they should 
be for the lights in their homes, and are helpless in the hands 
of a monopoly, or that the street car service and the fares 
charged are not satisfactory. Then goes up the cry that the 
town should conduct these enterprises itself, and that it 
should never in the first place have granted the privilege 
away. 

WATER WORKS. 

Of all these various functions which were usually at first 
delegated to private companies, the control of water works 



Business Entekpeises of the State. 351 

by private companies has usually proved most unsatisfactory. 
The public health and the public safety demand pure water 
and plenty of it; that there should be enough of it even to 
waste. Without express power from the Legislature the town 
cannot build water works, and, unless that power was con- 
ferred by its original charter, it often has to face the water 
company's lobby in the Legislature before it can get author- 
ity to construct its own plant. If the water company had its 
original grant from the Legislature it may legally claim an 
exclusive right to conduct the water works system, and a 
costly condemnation proceeding of the company's plant may 
be necessary. On the other hand, the company has invested 
its money, taken all the risk of the town's growing to such a 
size, that its business is profitable and, if the town build its 
own plant without buying that of the water company, ruin 
stares the concern in the face. This situation has arisen 
scores of times in scores of places, and the common experi- 
ence seems to be that in the end every place of any size is 
compelled to own and operate its own system of water works 
and sewers. 

GAS AND ELECTRIC LIGHT COMPANIES. 

"With regard to these, American municipalities are still 
in an experimental stage. In many of the smaller towns the 
streets are lighted by public systems, and they have often 
proved economical and satisfactory. In some cities municipal 
gas plants are said to have worked well. In others they have 
been sources of corruption and expense, and have been aban- 
doned to private companies. Municipal electric plants in 
large cities are rare, and where they are employed they are 
still in the purely experimental stages. As said already, the 
experiment in smaller towns has been fairly successful. They 
require but a comparatively small outlay, comparatively few 
private dwellings are to be lighted, and the profits to a private 
corporation would be so small that there is little temptation 
for private companies to compete. The fact that there is but 



352 Business Entebprises of the State. 

little chance for profit very likely explains the rather fre- 
quent introduction of public plants in very small places, while 
private enterprise undertakes the task in the larger ones. 

STREET RAILWAYS. 

Only a very few cities of any size in this country under- 
take to own or operate their street railway lines, and such 
enterprises will probably remain in private hands for many 
years to come, if they are ever undertaken by the govern- 
ment. Boston and Xew York are constructing tunnels for 
underground railways, the tunnels being owned by the muni- 
cipality and the right to use them leased to the traction com- 
panies, but this is as far as progress has been made in these 
centers of population in the direction of municipal ownership. 
Meanwhile, systems of electric railway are being spread all 
over the rural and suburban districts by private enterprise, 
and franchises are as readily secured and granted as ever. 
Enormous amounts of private capital are being invested in 
them, and the major portion of the traffic between towns in 
ail the well populated states will soon be done by means of 
these rural electric lines. This new development of private 
enterprise promises to postpone, if not forever defer, the 
day when the government in this country will undertake to 
own or operate electric railways. It is also against the expe- 
rience or policy of the national government to attempt to 
acquire ownership in its transcontinental lines. In a word, 
the question of how far the government should go in the 
direction of owning and operating enterprises affected with 
a public use seems to be settling itself in America without 
the assistance of the dreams of the socialist on the one side, 
or the theories and maxims of the lawyer on the other. 

WHERE TO DRAW THE LINE. 

Many legal text writers have viewed with alarm the tend- 
ency of the courts to extend legislative control to private 
enterprises which were not exercised through governmental 
franchises, on the ground that they were "affected with a 



Business Enterprises of the State. 353 

public use," but the result probably will be that the day when 
any government will itself undertake the conduct of such 
enterprises has thereby been deferred. By the extension of 
the police power over corporations, the present supervision of 
banks and insurance companies, the probable supervision of 
trusts and great combinations of capital by the state in the 
near future, the taxation of franchises as property, all seem 
to indicate that modern economic problems are in process of 
solution through the gradual and beneficial extension of the 
police power of the state, rather than by any extensive exper- 
iments in government ownership and control. 

LAW AND POLITICAL SCIENCE. 

This is one of the many places where the discussion of 
legal problems brings us face to face with social, economic 
and political problems which are beyond the scope of any 
book which is designed to treat solely of legal rights and 
duties. But it is well enough to understand that the reason 
why the government undertakes one enterprise itself and 
delegates another to the efforts of private energy and private 
capital, lies rather in the experience and experiments of man- 
kind, than in any established legal rules. 



CHAPTEK XXXVn. 
PEIVATE PROPERTY TAKEN FOR PUBLIC USES. 

Contract Rights Inferior to the Power — Limitations of the Power — 
The Public Use — Property Which May be Acquired — Extent of 
Damages — Who Receives the Money — Condemnation Proceedings 
— Due Process of Law. 

The state may take private property in two ways. It 
may take it in the form of taxes, in which case a percentage 
of the property taxed is to be paid by the individual to the 
taxing power; or by what is known in law as the "power of 
eminent domain," when the property itself is required by 
the state for public purposes. This is as much a part of sov- 
ereign power as that of taxation. In this country it is sub- 
ject to the general constitutional inhibition against taking 
private property for public purposes without due process of 
law, or without just compensation. Without this power, 
streets and highways could not be built, unless every one 
along the way was willing to give his property. Railroads 
could not be constructed, unless every one along the line con- 
sented to the exact route; street car lines could not be estab- 
lished, unless every abutting property owner could be induced 
to give his consent; public parks could not be laid out; tele- 
phone and telegraph lines constructed; in short, without the 
power of eminent domain, inherent in the sovereignty of the 
state, the progress of modern industry and civilization would 
be at a standstill. On the other hand, without the constitu- 
tional restraint, the individual might see his property seized 
and have no redress; as he could not bring an action at law 
against the state, which authorized the taking of his property. 

CONTRACT RIGHTS INFERIOR TO THE POWER. 

It has happened in the past, and may happen more fre- 
quently in the future, as the state more frequently seeks to 

354 



Private Property Taken for Puelio Uses. 355 

regain control of public service corporations and their prop- 
erty, that it has been claimed by those whose property is 
sought to be taken that they have some contract with the 
state, whereby they are vested in the right to use the prop- 
erty, and that to take it would be to impair the obligation of 
their contract, something as we have seen, that the Constitu- 
tion of the United States prohibits. In a recent case, in the 
United States Supreme Court, this contention was made on 
behalf of a cemetery association, which had been granted a 
charter for the purpose of conducting a cemetery. It had 
acquired land and dedicated it to that purpose and contended 
that the right to have the land used as a cemetery was a 
franchise granted by the Legislature; that, under the deci- 
sions, this franchise was a contract, and was protected by the 
provision in the Constitution of the United States forbidding 
the impairment of the obligations of contracts by any state. 
The court held that the power of eminent domain, that is, 
the power in the state to take private property for public pur- 
poses, upon making just compensation therefor, and employ- 
ing due process of law, was an element of the sovereign 
power which the Legislature could not contract away or sell 
and that it, therefore, was above all contracts; that, by its 
very nature, it required the taking of property concerning 
which contracts might have been made, and that, therefore, 
the defense was invalid. When we consider that the time 
may often come when it seems advisable for the state to 
resume some of the property and franchises it has instrusted 
to public service corporations with a hand so lavish, the 
decision above cited, and similar decisions, will become of 
immense importance to the state and to the people at large. 

LIMITATIONS OF THE POWER. 

There are three important limitations upon the exercise 
of the power. It must be invoked for a public use ; the prop- 
erty sought to be taken must be necessary to the purpose for 
which the public work is designed; compensation must be 



356 Private Property Taken for Public Uses. 

paid, and must be just. It must be exercised only within the 
territory of the state employing it, and for the purposes of 
that state and not those of any foreign state. The manner 
of its exercise is strictly under legislative control. The 
power may be delegated by the state to private persons, pub- 
lic or private corporations; but always subject to the same 
restrictions that rest upon the exercise of the power by the 
state itself. The power once delegated, it cannot be re-dele- 
gated by the agent to whom the power is given. It may be 
conferred by special charter to an individual company, or in a 
general law which will apply to any one meeting with its 
requirements. The conditions and requirements of the grant, 
whether by special charter or general law, must be strictly 
complied with. Any condition prescribed as precedent to the 
employing of the power must be met before the power dele- 
gated vests. The right must not only be used by the person 
or corporation to whom it is given; the land or property 
acquired must be used only for the purpose for which it was 
taken. A railroad company could not take my land for the 
purpose of building its road and then conclude to build the 
road somewhere else and sell or otherwise use the land. By 
condemnation proceedings the property is usually taken only 
as an easement and the ultimate title usually remains in the 
original owner, so that, if the use for which the property 
were taken were abandoned, the title would, generally, revert 
to the original proprietor. 

THE PUBLIC USE. 

The taking, as we have seen, cannot be for any private 
advantage and must be for the use, convenience and benefit 
of the public at large. The fact that only a small portion of 
the public, in a particular locality, is benefited, makes no dif- 
ference, so long as the purpose is for the common benefit and 
not for the benefit of any one individual or class of indi- 
viduals. A private club, for instance, could never be given 
the privilege of acquiring property in the vicinity which it 



Pbivate Property Taken for Public Uses. 357 

desired for its grounds, by condemnation proceedings. On 
the other hand, the public need not own or operate the enter- 
prise for which the property is taken. The test is whether 
the object to be accomplished is public. A railroad is not 
constructed for the benefit of the company that builds it, but 
for public use and convenience ; and the very fact that it can- 
not well be built without the assistance of governmental pow- 
ers, gives the public rights in its management and control 
which often prove important and valuable. In case, as often 
happens, the use be partly for the benefit of the public and 
partly for private advantage, the latter must be merely inci- 
dental and not the chief factor. The public attend theaters; 
but they are built primarily for private gain and no theater 
company could be permitted to condemn the land desired for 
the purpose of constructing a play house. The question of 
the necessity and expediency of the enterprise for the aid of 
which the power of eminent domain is delegated, the mode 
and manner of exercising the right, the extent of the estate 
or interest and the particular property to be taken, are all 
within the discretion of the Legislature; and when this dis- 
cretion has once been employed the courts will seldom inter- 
fere. On the other hand, the question whether or not the use 
for which the property is to be taken is a public use will be 
inquired into by the courts, although the legislative declara- 
tion that the use is public will go a long way in affecting the 
judicial view of the matter. In some of the states the Con- 
stitution itself prescribes what uses are public and that con- 
cludes both courts and Legislature, except in so far as it is 
the province of the court to interpret the Constitution. 
Among the uses for which the public directly or by delegated 
power, has taken private property and which have been held 
to be public purposes, within the meaning of the Constitution, 
are: highways, railroads, both surface and elevated, operated 
by horses, steam or electricity; telegraphs and telephones, 
electric light plants, canals, bridges and ferries, improvements 
in aid of navigation, public wharves and landings, sluices for 



358 Private Property Taken for Public Uses. 

the passage of fish, booms, dikes and levees, works for the 
drainage of land, drains and sewers in cities, irrigation, 
water works for cities and towns, public markets, public 
parks, pipe lines, cemeteries, mills, development of mines, 
grain elevators, and general government purposes. Among 
the latter may be included: the establishment of forts, post 
offices, navy or dock yards, court houses, military camps, light 
houses, barracks, hospitals, custom houses, aqueducts, and 
school houses. Where the title to the property itself was 
taken, it can, in some states, be used, under legislative author- 
ity, for purposes other than that to which it was originally 
devoted. But, as a general rule, only the easement is taken, 
and, in such cases the use everywhere must be confined to the 
purpose for which the power was originally granted, as has 
been already pointed out. 

PROPERTY WHICH MAY BE ACQUIRED. 

The property taken is generally real estate, and in the 
popular mind the power of taking private property for public 
uses is confined to land. But there is no such limitation in 
fact upon the power. It may be just as essential that a rail- 
road should have gravel for its road bed as it is that it should 
have a right of way for its line. It would, of course, gener- 
ally buy the gravel in preference to the condemnation of the 
gravel pit, but if the owner of the pit refused to sell it and 
the gravel were necessary to the construction of the road, 
the pit could be condemned, even though it was not upon 
property which the road proposed to cross, if the proper leg- 
islative authority were given. But property which is not in 
any sense real property may be taken if it is really needed 
and power to take it is granted. For instance, if it were 
desired to condemn a railroad already in existence, and the 
easiest method of acquiring it were to condemn the shares 
of stock of the corporation that owned it, there is authority 
to the effect that the shares of stock could be condemned. 
The property of corporations is just as liable to be taken as 



Private Property Taken for Public Uses. 359 

the property of individuals, and corporate franchises, as we 
have already seen, are subject to the right of the state to 
acquire them by the process of condemnation proceedings. 
In some of the states, to make assurance of this power doubly 
sure, the right to condemn corporate franchises has been 
incorporated into the Constitution; but it undoubtedly exists 
without the assistance of such a constitutional provision. 
Property in the hands of a receiver, in process of partition, 
or in any other way tied up in litigation, property devised for 
a life use in a will, property owned by Indians, in fact, prop- 
erty of any kind, with the probable exception of money itself, 
is subject to condemnation proceedings. Land already 
devoted to public use for one purpose may be condemned to 
be used for another. 

EXTENT OP DAMAGES. 

If the title to the land itself, or the probable exclusive use 
thereof forever, or for a period beyond the average of human 
life, is to be taken, the question of damages turns upon the 
value of the property. But the damage for the taking of the 
property may well include the injuries to property in the 
vicinity of the property taken. If a railroad is to cut a man's 
farm in two, right in the middle, it cannot compensate him by 
merely paying him for the strip actually needed for the right 
of way of the road. It is for public convenience that roads 
should run in lines that are as nearly as may be, straight. 
The convenience of the individual must yield to the public 
need. But it must yield no further than is necessary. The 
damages incident to the manner of the taking must be paid 
for. If, however, no actual property is taken from the man 
claiming damages, and the road or other public work is prop- 
erly constructed and operated, there can be no award of 
damages, as a general rule. If the public work is so built or 
operated that it injuriously affects other property to an extent 
amounting to a legal nuisance, the remedies of the property 
owner are considered in the chapter on nuisances. Where a 



360 Peivate Propbkty Taken for Public Uses. 

portion of a man's estate is acquired, the injuries to property 
other than that actually taken must be certain and capable 
of definite proof if they are to be paid for. They cannot be 
merely speculative, prospective, or contingent. For instance, 
probable injuries from competition with the work for which 
the land was taken cannot be considered, nor can the loss of 
the good will of a business, nor its prospective profits. Where 
the danger from fire, or to animals, is increased by the build- 
ing of the public work to such an extent that the value of the 
property is actually affected, the fact could be taken into 
consideration, in fixing the amount of damages. The proba- 
bility of teams being frightened comes under the same rule. 
Where the injury is from smoke, noise, vibration, obstruc- 
tion to light, inconvenience to the owner in the management 
of his property, exposure to property during construction, 
injuries to fences, and the stoppage of access to public waters, 
all have been held to be elements which can be taken into 
account in fixing the damages, when part of the property is 
taken under condemnation proceedings. As the rule for 
determining the damages in all of these cases is the market 
value of the property, any benefits which the property is to 
receive from the construction of the work must also be con- 
sidered. It might happen that, in spite of all or any one of 
the incidental disadvantages, the market value of the prop- 
erty, a part of which was to be taken, would be sensibly 
increased, rather than diminished, by the construction of the 
public work undertaken. If the land itself is to be taken, 
this fact makes no difference, and the corporation must pay 
for it. But if the property owner is seeking incidental dam- 
ages to the rest of his property in addition, he could scarcely 
claim them if, in fact, the market value of the rest of his 
property were going to be enhanced. It sometimes happens 
that property to be taken by a municipal corporation is for 
a public street, the opening of which will benefit the prop- 
erty; and that the act authorizing the opening of the street, 
also provides that the cost of opening it shall be assessed upon 



Private Property Taken for Purlic Uses. 361 

the property to be benefited. In such case it may happen 
that the tax for the benefit is applied npon the value of the 
land taken. This is done, however, not under the power of 
eminent domain; but under the power of taxation, which is 
considered elsewhere. 

WHO RECEIVES THE MONEY. 

The damages awarded may be paid to either one of two 
partners, where it is partnership property. A widow is enti- 
tled to have her dower estimated and paid to her out of the 
fund. The courts are at variance whether the money should 
be paid to the landowner or to the holder of a mortgage upon 
it. This is often regulated by statute or by the terms of the 
mortgage itself. Persons holding property under lease are 
entitled to such portion of the award as will correspond to 
the value of their interest in the premises. The heir and not 
the administrator of a deceased landowner is entitled to the 
award of damages. If the owner is unknown, or if there is a 
dispute as to whom the money should be paid, it may gener- 
ally be paid into court, and the corporation seeking to acquire 
the property is then secure in its title, and is relieved from 
further liability. 

CONDEMNATION PROCEEDINGS. 

The legal process by which the power of eminent domain 
is to be exercised is generally called a "condemnation pro- 
ceeding." Disinterested persons are appointed, either by the 
statute, the court or by agreement of the parties, who take 
testimony as to the value of the land to be taken and the 
nature of the damages, if any, which the rest of the property 
will sustain, and then fix the award of damages. There is 
usually an opportunity to review the proceeding in the courts; 
and if it be shown that a wrong principle has been adopted in 
arriving at the damages awarded, the award might be set 
aside. Of course, it is not expected that such commissioners 
can proceed with the same strictness in receiving evidence 
and similar matters, as courts of law; and, as they are vested 



362 Private Property Taken for Public Uses. 

with rather wide discretionary powers, it is not always easy 
to overturn an award, once made, even though excessive. 

DUE PROCESS OF LAW. 

Even under the power of eminent domain a corporation 
cannot merely pay me what it thinks just for my land, enter 
upon it and make the improvement, without further ado. It 
would be a trespasser and a wrongdoer; even if the court 
should afterwards hold that the amount offered was a "just 
compensation" to me for the property I had lost and the 
damages I had sustained. Something more is necessary to 
make the taking for the public purpose lawful. There must 
have been a "due process of law," within the meaning of the 
section of the Constitution of the United States, which for- 
bids the taking of private property without it. The require- 
ment of due process of law is usually satisfied by a legal pro- 
ceeding which involves due notice to the party whose prop- 
erty is to be taken, and a hearing, pursuant to such notice, 
whereat the party whose rights are to be affected has a fair 
opportunity to present such facts as are within the issues and 
are favorable to his contention. This fact is so generally 
understood, and usually the manner of the taking of private 
property is so well regulated by statute and custom, that an 
attempt to take private property for public purposes under 
the power of eminent domain, without the notice and hearing 
which due process of law requires, is a very rare if not 
unheard of occurrence. Nevertheless, the right to the due 
process of law is not merely theoretical, and under many cir- 
cumstances may prove material and important. 



CHAPTER XXXVIII. 
PRINCIPLES OF TAXATION. 

Direct and Indirect Taxes — Land and Personal Property — The Pur- 
pose of Taxes — Who and What May be Taxed — The Locality Ben- 
efited — Apportionment of the Tax. 

Taxation is the power inherent in the government to col- 
lect the revenue without which no government can exist. 
Chief Justice Marshall was the author of that famous epi- 
gram, "the power to tax involves the power to destroy." In 
the past, whole nations have been impoverished, to the point 
of starvation and slavery, by the excessive taxes imposed by 
their governments. As the only remedy against tyrannical 
taxation was revolution, most of the great popular uprisings of 
history have originated in a protest against the imposition of 
taxes. Volumes have been written about them by the histor- 
ian, political economist, and social reformer, as well as by the 
lawyer. They represent the proportion which each man pays 
for the support of the government and their justice depends 
upon their equitable distribution as well as upon their amount. 
The power to tax differs from the power of eminent domain in 
the respect that the government makes no direct return for 
what it takes in the form of taxation; while it is supposed to 
pay the fair value in money for what property or estate it 
may require for public purposes. Taxation differs from 
licenses and penalties imposed under the police power, as the 
revenue derived in such cases is not the primary object, but 
the regulation of some traffic which would otherwise be dan- 
gerous to the public health, morals, or good order. 

DIRECT AND INDIRECT TAXES. 

Direct taxes are assessed upon the property, persons, 
income or business of those who pay them. The United 

363 



364: Pkinoiples of Taxation. 

States government commonly employs the indirect method of 
taxing commodities before they reach the consumer. It may 
levy direct taxes and does so in times of stress upon the 
national treasury or when a political party happens to be in 
power, which does not believe in the indirect method. Under 
the Constitution, direct taxes must be apportioned among the 
states in proportion to the federal census upon which is based 
the representation in Congress. It was under this section of 
the Constitution that the income tax law was held void in 
1892 by the Supreme Court of the United States. Income 
taxes were levied and collected throughout the Civil war, 
and there is no doubt that such a tax can be constitutionally 
levied, if the errors, claimed by the Supreme Court to have 
been committed in that particular act, are avoided. In levying 
its duties, imposts and excises, throughout the states, Con- 
gress must make them uniform; and cannot give any prefer- 
ence or advantage to one state over another. 

LAND AND PERSONAL PROPERTY. 

Upon real estate has fallen the chief burden of taxation, 
and some theorists have held that all taxation should be 
based upon land values. In practice, in recent years, the 
effort of the lawmakers has been to relieve the burden upon 
real estate, as far as possible, both by increasing indirect taxes 
and the taxes upon personal property. In ancient times the 
value of land, as compared with that of all the personal prop- 
erty in existence, was so immeasurably greater that a tax 
amounting to one-fourth of all movable effects was not uncom- 
mon. To-day the case is reversed, and the value of all per- 
sonal property is probably much greater than that of land. 
Owing to its peculiar characteristics, there are many difficul- 
ties in the way of imposing just and equitable taxes upon per- 
sonal property. In the first place, taxation can only be 
extended to such property as remains in the jurisdiction of the 
taxing power. In the second place, a large amount of the 
personal property of the world consists in the debts and obli- 
gations of other people. For example, I borrow money of Mr. 



Principles of Taxation, 365 

Smith, I give him my personal note or bond to repay that 
money with interest. As security for the loan I also give him 
a mortgage on my house and lot. Here are several different 
kinds of property, any or all of which may be taxable. There 
is my equity in my house and lot ; there is Smith's interest in 
the real estate; there is the money that has been loaned to me 
by Smith, and there is further my note or obligation which 
Smith holds. Suppose my place was worth $2,000, Smith 
loans me $1,000, I give a note to Smith for $1,000 and a 
mortgage for $1,000. I have, in the land and the money 
loaned me an apparent property of $3,000; and Smith, in the 
form of my bond and mortgage has, at least $1,000 more; and 
yet, before the loan, there was only property worth $3,000 
between us. Suppose, further, that Smith removes out of the 
state. Such interest as the mortgage gives him in my land 
might be taxed, if the law of the state recognizes a mortgage 
as an interest in lands. But the weight of authority is that 
the mortgage is a mere security for the debt. I^ow, while 
tangible personal property may be taxed within a state, though 
the owner be a non-resident, intangible personal property, 
such as this debt of mine to Smith, is not property which can 
be taxed, except at the residence of Smith. He, therefore, 
avoids the payment of the tax, while his less fortunate neigh- 
bor, who still resides in the state, might be made subject to it. 
Suppose that the mortgage bears interest at five per cent, and 
the tax amounts to two per cent., the income of Smith from 
his loan is reduced to three per cent., if he is reached by the 
tax gatherer. These considerations, and circumstances similar 
to these, have rendered personal taxes difficult of collection 
and unpopular. On the other hand, the ever increasing bur- 
dens on real estate have brought law makers face to face with 
the necessity of reducing them by every device possible. 

PURPOSE OF TAXES. 

Taxes must be levied for the public good; but, as the 
Legislature is the final authority as to what is the public good, 
the question can never arise in litigation. Taxes must be for a 



366 Principles of Taxation. 

public purpose. "What is a public purpose the courts may 
determine. It is evident that all general expenses of the gov- 
ernment, the preservation of public order and of civil rights, 
the prevention of crime, the compensation of public officers, 
the erection and protection of public buildings, the expenses 
of legislating and executing the laws, are obviously purposes 
public in their character, and purposes the money for which 
must necessarily be raised by taxation. The building of roads 
and highways, the establishment of water and gas works, the 
protection of the public health and the payment of the public 
debt are just as obviously public purposes. But suppose that 
the road is to be built by a private corporation for the benefit 
of the public, and the surrounding country is in such a con- 
dition that the road is almost a public necessity, can the town 
legally contribute toward the building of the highway? When 
the private road is a railroad which, when built, will connect 
the town with the markets for its wares and bring to it trade 
and business enterprises, the question becomes still more 
important. Before it came up for a practical legal solution, 
acts had been passed by Legislatures throughout the Union, 
permitting localities to bond themselves in aid of railroad 
construction; the bonds had been issued and sold, and the 
trouble first arose when innocent investors were trying to 
recover their money and the towns were trying to repudiate 
their debt. A vast amount of litigation sprang up in various 
states, under various constitutions and statutory provisions 
and with varying degrees of justice or injustice in the claims. 
The result was that it was generally held that the purpose 
was a public purpose and that the payment of the bonds could 
not be avoided unless there had been a substantial failure to 
comply with the statutes authorizing their issuance. But the 
courts have gone no further. Assume that a great manu- 
facturing concern desires to locate its plant in a small village ; 
and offers to do so, provided the village will vote it land for 
its plant. Could the village legally comply with the request, 
even if authorized by the Legislature, especially in view of 



Principles of Taxation. 367 

recent amendments to the majority of state constitutions? 
This is what the Supreme Court of Maine had to say on a 
similar question: 

"The inquiry is whether the Legislature can authorize a 
town, by a majority or any other vote, to give away the 
property of an unwilling minority to an individual or manu- 
facturing corporation, whom or which such majority may 
select as donees? The question relates only to manufacturers; 
but if the right of confiscating the private property of an indi- 
vidual for the purpose of giving it away to one branch of 
industry can be conferred upon towns, one does not easily see 
where or what bounds can be imposed or limitations made. 
The general benefit to the community resulting from every 
description of well directed labor is of the same character, 
whatever may be the branch of industry upon which it may 
be expended. All useful laborers, no matter what may be 
the field of labor, serve the state, by increasing the aggregate 
of its products, — its wealth. There is nothing of a public 
nature any more entitling the manufacturer to public gifts 
than the sailor, the mechanic, the lumberman, or the farmer. 
Our government is based upon equality of rights. All honest 
employments are honorable. The state cannot rightfully dis- 
criminate among occupations; for discrimination in favor of 
one branch of industry is discrimination adverse to all other 
branches. The state is equally to protect all, giving no undue 
advantage or especial or exclusive privilege to any." 

WHO AND WHAT MAT BE TAXED. 

Per capita or poll taxes are not very general in this coun- 
try. Land, houses, the income from capital, employments, 
means of transportation, wages, horses, dogs, carriages, inter- 
est on money, dividends, legacies and inheritances, sales, bills 
of exchange, notes, checks, newspapers, legal process, ail 
kinds of luxuries, imports, franchises, corporations, their 
capital stock and property, amusements, in fact almost 
anything that may be owned, may be and has been, at one 



368 Principles of Taxation. 

time or another, subject to taxation. That there should be 
no taxation without representation was one of the maxims 
upon which our institutions were founded; but this does not, 
and never did, mean that no person could be taxed, unless he 
was represented by some one in the body which voted the 
tax, in whose selection he had a voice. While the elective 
franchise might, under our system, be limited to persons who 
pay taxes, persons subject to taxation cannot, on the other 
hand, be limited to such as have the elective franchise. The 
right to tax belongs to the sovereign power, and, unlike the 
power of eminent domain, it may not be delegated to any pri- 
vate individual or corporation. E"or, ordinarily, can one Leg- 
islature impair that power of sovereignty in the hands of a 
succeeding Legislature. No one can acquire a right to an 
exemption from taxation which cannot be taken away, unless 
he pay for that right. In other words, if the Legislature 
secure a loan for the state, on the agreement that the bonds, 
given as security for that loan, shall be exempt from taxa- 
tion, the agreement for an exemption is made upon a valid 
consideration: there has been a contract between the state 
and the individual; and no subsequent Legislature can impair 
the obligation of that contract by levying a tax upon those 
bonds. As we have seen, a state may tax only such property 
as is within its territorial limitations. We have also seen that 
it is the theory of the law that personal property follows the 
owner about with it; and is, in contemplation of law, wher- 
ever he may be. The strict application of that theory has 
proved so vexing to the tax gatherer that it has been, in many 
states, modified by statutes which have been upheld by the 
courts. The distinction is, therefore, made between "tangi- 
ble" personal property, such property as may be seen and 
handled, and "intangible" personal property, such as my debt 
to Mr. Smith, in the foregoing illustration. Among the arti- 
cles of personal property which are most commonly reached 
by the tax gatherer, whether or not the owner thereof be a 
non resident, are : money, animals, water craft, logs and lum- 



Principles of Taxation. 369 

her, and, probably, all general farm and dairy products. The 
questions as to when the tax shall be levied, what shall be 
taxed, whether the taxes shall be per capita or upon prop- 
erty, direct or indirect, according to the value of the article 
or according to its weight or bulk, and what classes of prop- 
erty are best fitted to bear the burden, are all purely legis- 
lative in their character. 

THE LOCALITY BENEFITED. 

It is a general principle of taxation and one that has been 
incorporated into many of the state constitutions, that the 
purpose of the tax to be levied must not only be public in 
its nature, but also of benefit to that portion of the public 
which is to pay the tax. It stands to reason that it would not 
be proper to tax the whole state to build a public park in some 
particular city; or to tax that city alone to build a large state 
penal institution within its borders. Town, city, county and 
village taxes should, in general, be for town, city, county and 
village purposes, and state taxes for state purposes. It may 
often happen that an interesting question may arise as to 
what is a local purpose and what is a state purpose. The state 
delegates to localities many of its functions of preserving pub- 
lic health and public order. Most states delegate the regula- 
tion of local police to local authorities and their support to 
local taxpayers, and yet, under most of the constitutions, it 
would, probably, be perfectly constitutional for a state gov- 
ernment to reserve to itself the control of the constabulary 
for the entire state. In the same way, the general purpose 
of public education is so far a state purpose that, under a sys- 
tem of state taxation, the wealthier and more populous por- 
tions of a state may be compelled to bear a share of the bur- 
den of educating the public in the poorer and more rural dis- 
tricts. The state could not very well tax all the people of the 
state for a public park or other strictly local improvement, 
built for a purely local purpose; but, on the other hand, it 
might erect its capitol building in any portion of the state 



370 Pbinoiples of Taxation. 

selected and expend millions of dollars upon its ornamenta- 
tion. It will be seen, by tbese suggestions, that while the 
principle is obvious enough, questions may arise which pre- 
sent great practical difficulties. 

APPORTIONMENT OF THE TAX. 

In order that a tax may be levied, a tax district must be 
established, the basis of the apportionment must be fixed and 
the tax must be applied uniformly throughout the district. 
Of course it is not a valid objection that some persons are 
enabled to evade the tax and that the burden is not for that 
reason, equally borne by all. That one man does not do his 
duty is no excuse to another for not doing his. In theory the 
tax should be so adjusted that each person bears his fair 
share in proportion to his property and to the benefits he 
enjoys. In practice this is impossible. On the part of the 
Legislature there is always the effort to place the burden of 
taxation upon those who are most able to bear it, and from 
this arises many of the exemptions, as of wages, tools of work- 
men, incomes below a certain amount, furniture below a cer- 
tain value. On the other hand, there is an inexorable law by 
which the burdens of taxation are passed along from the 
shoulders of the rich to those of the poor. The land owner is 
taxed; he raises his rent to the amount of the tax. The man 
who lends money on mortgage is taxed; he raises the interest 
thereon, or, if the usury laws prevent, forecloses the mort- 
gage. The carrier of passengers is taxed; it increases its 
charges to them by the amount of the tax. The United 
States government places a tax on express receipts and tele- 
grams; the telegraph or express company collects the tax 
from the customer and turns it over to the government. 

The various methods of taxing property may, in the last 
analysis, be reduced to three. A specific tax, an ad valorem 
tax, and a tax based upon the amount of benefit the property 
is supposed to derive from the object for which the tax is 
imposed. The specific tax is so much per pound, per gallon, 



Principles of Taxation. 371 

per yard, per cubic foot. The ad valorem tax is so many dol- 
lars on the hundred of valuation. The tax proportioned to 
supposed benefits is most commonly met with in assessments 
for local improvements, a subject that will be more fully con- 
sidered in another chapter. Although the phrase "ad va- 
lorem" is most commonly found in the tariff kws, any assess- 
ment, based upon the market money value of property, 
whether, it be real or personal, is, in a strict sense, an ad 
valorem tax. In the assessment of real estate it has been the 
custom for assessors to fix a valuation at a point considerably 
below the actual value, in order to give the property owner 
the benefit of all doubt, Sometimes it has become the prac- 
tice to arrive at what is believed to be the true value and 
then subtract from one-half to one-third of the amount. As 
long as the same general basis of taxation is preserved and 
one man is not taxed the full value of his place and another 
only half what it is worth the method is legal enough; and, 
though the amount of tax to be raised must, in the end, be the 
same and the rate higher, if the total assessed valuation is 
less, the public seems to get much comfort and satisfaction 
out of the system. 



CHAPTEK XXXIX. 
LEYY AXD COLLECTION OF TAXES. 

Legislative Authority— The Tax Levy— Correction of Errors— Tax 
Liens — Tax Sales — Tax Sale Deeds. 

Having roughly indicated the general underlying princi- 
ples governing taxation, we shall now consider the manner 
in which taxes are levied and collected. In the course of this 
discussion no effort will be made to consider the methods pur- 
sued by the national government in the collection of its cus- 
toms and internal revenue; these taxes are paid by all of us 
in the increased prices charged us by the retailer, to whom 
the burden is passed along by the wholesaler, and who passes 
it along to us in turn. The method is suggestive of the 
childish game of "old maid" in which the undesirable card is 
passed from hand to hand. In real life the poorest man 
usually has the card at the end and scarcely realizes that he 
has drawn it. How many of us feel that every time we buy 
a cigar we are paying a tax into the treasury of Uncle 
Sam? Many of the state taxes are also indirect. All the rev- 
enues from- the liquor traffic are of this character, partaking 
as well, as we have seen, of the nature of police regulations. 
Incorporation taxes, all sorts of stamp taxes, and many other 
sources of state and national revenue, are never directly 
apportioned to be raised by assessment. Both the state and 
nation derive large revenues from inheritance and legacy 
taxes which are never felt except by individuals who pay 
them at a time when their assets are largely increased by the 
death of the former owners. It has been the policy of state 
governments in recent years to derive as large a portion of 
the revenue as possible from such sources, and municipalities 
are rapidlv following in turn. Special charges for water 

372 



Levy and Collection op Taxes. 373 

rates, license fees of all descriptions, and other sources of 
income are being eagerly sought for by politicians charged 
with the duty of making the tax rate as low as possible. 
Taxes such as these, though we all pay them indirectly, do 
not fall upon us directly as liens upon our property. 

LEGISLATIVE AUTHORITY. 

There must be direct legislative authority for every tax 
levied. In a few exceptional cases levies have been author- 
ized by statutes enacted into the Constitution. It cannot be 
delegated to any but a subordinate political division of the 
state, incorporated by statute; but the computation of the 
amount of the tax and the fixing of the rate per cent, may be 
delegated to administrative officers. The power to tax must 
include the power to determine the amount to be borne by 
each tax district, and, in that tax district, of each person or 
piece of property. The tax may be apportioned among all 
the people of the state or those residing in a particular tax 
district, according to the principles laid down in the last chap- 
ter. There may be school tax districts, canal tax districts, 
fire tax districts, in fact tax districts as numerous as the dif- 
ferent purposes of taxation, and these districts need not con- 
form to the political divisions of the state. It is often custom- 
ary, however, for the state to employ the local tax collect- 
ing machinery of its political subdivisions for the collection 
of its direct taxes. Tor instance, the state tax may be appor- 
tioned among the counties through boards of equalization, 
and then by the counties added to their own taxes, collected 
and turned over to the state. Sometimes the minor political 
subdivisions, such as towns and villages, also use the county 
machinery for the collection of the tax needed for their local 
purposes. The power of levying the tax conferred by the 
Legislature must be exercised in accordance with the legis- 
lative directions. If the performance of some act is made by 
the statute a condition precedent for the vesting of the tax- 
ing power, that condition must be performed before the tax 
is levied, or the whole assessment will be void. 



374 Lett and Collection of Taxes. 

the tax levy. 
Every step in the levying of the tax must be preserved in 
a written record which will serve as evidence of the levying 
of the tax. If the tax is once legally made, it is a lien on the 
property taxed, which can be discharged only by payment, 
or by the Legislature. The power to tax implies the power 
to commute, refund or remit it; but this power is in the 
Legislature alone and cannot be exercised by municipalities 
without legislative authority. The official valuation of prop- 
erty of individuals and corporations and the determination of 
the exact amount which each person subject to the tax is to 
pay, is the assessment. A new assessment must be made for 
every new tax: a tax based on an assessment for a former 
tax would be void. The details of the process are often fixed 
by statute, and in the absence of statute the assessors have a 
reasonable discretion in the matter. In the exercise of this 
discretion they usually follow the customs established in the 
locality by long continued and reasonable usage. The statutes 
often require corporations and individuals to file with the 
assessors statements of their taxable property, and prescribe 
penalties for failure to do so. The statement when filed is 
binding on the person who files it but not on the assessors. 
The values of real estate are usually fixed by the assessors 
upon personal inspection of the property. One of the diffi- 
culties in the way of taxing personal property lies in the cus- 
tomary statutes which permit those taxed for personal prop- 
erty to avoid the tax by making affidavit that their outstand- 
ing debts equal or exceed the amount of the property stand- 
ing in their name. The laxity of individual conscience in this 
matter often has the result of making scrupulous men pay a 
penalty for honesty while a proportionate premium is put 
upon perjury or, at best, evasion. The property taxed is 
usually arranged on the assessment rolls in columns, accord- 
ing to locality, with the name of the owner of the real prop- 
erty in the first column, the description of the property taxed 
and its quantity in the second, and its value and proportion- 



Levy and Collection of Taxes. 375 

ate share of the tax in the third and fourth respectively. A 
mistake in the name of the person assessed for personal 
property is usually fatal to the tax. but as the tax is a lien 
on the real property itself, such mistakes seldom invalidate 
a real property assessment. There are usually statutes mak- 
ing it the duty of those who transfer property to notify the 
assessors personally of the transfer and of the person to 
whom the transfer is made, and failure to comply with the 
regulation usually is alone sufficient to sustain the tax. Real 
estate, the owner of which is unknown, may be assessed to 
an "unknown" owner, Heal estate of non-residents must be 
indicated as such on the rolls. Separate parcels of real estate, 
even though all on one city block, must be separately assessed. 
When the roll is completed the amount of tax due from each 
individual must be computed and set down in the fourth 
column to make the tax binding. 

CORRECTION OF ERRORS. 

For damages which may accrue through the negligence 
of assessors, or for acts done by them which are not within 
the scope of their authority or jurisdiction, they are person- 
ally liable to the person so damaged. But they are not liable 
for errors of judgment, nor for acts within the scope of their 
discretionary authority. The statutes always provide for the 
correction of errors in the assessment roll upon complaint of 
the taxpayer aggrieved, and this may be by the assessors 
themselves, or by boards of equalization or review, as the 
statute may determine. Before the assessment can be final 
and binding the opportunity for complaints and allegations 
against the assessment should be given with the notice and 
hearing required by due process of law. The notice is often 
given by publication in newspapers circulated in the tax dis- 
trict, for the length of time fixed by statute, and the hearing 
must be sufficient for the taxpayer fairly to present his case. 
If the taxpayer fail to take advantage of the opportunity 
afforded he is usually precluded from any complaint against 



376 Levy and Collection of Taxes. 

the assessment by proceedings in the courts, in the absence 
of fraud, unless the tax itself be for some reason invalid. To 
constitute a valid tax there must, of course, have been a 
valid statute authorizing it, and a valid assessment there- 
under. The usual proceeding to correct an injustice in an 
assessment is by what is known to lawyers as "certiorari," 
whereby the proceedings of the assessors and all of their 
records are brought before the court having jurisdiction of 
the matter, for review. If, for any reason, the assessment 
be invalid, the Legislature has power to direct another assess- 
ment upon the same property, and this will not usually be 
done unless the assessors in arriving at their conclusions have 
adopted some wrong principle of assessment as a basis for 
their action. On the other hand, if the tax itself be for any 
reason invalid, the Legislature could not usually direct a 
re-assessment. The general principle is that where public 
benefit has accrued from the tax, and the object of the tax 
itself is legal, the Legislature cannot be deprived of power 
to raise the money to pay for what has been expended, and 
that a re-assessment may be ordered. A man who desires to 
complain of a tax or the rate of his assessment should at once 
and without delay consult an attorney or he may lose, by rea- 
son of his delay and acquiescence, any rights he might have 
had 

TAX LIENS. 

Taxes, once levied, are usually by statute made a lien on 
the property assessed. If it be personal property, the lien 
extends to the entire estate of the taxpayer, and has practi- 
cally the same force and effect as a judgment at law. The 
warrant of the tax collector has practically the same force as 
an execution on a judgment. There are various summary 
methods of collection provided by statute in many of the 
states. In some of them property may be sold under the tax 
warrant in the same way as though an execution had been 
levied. In a few the taxpayer himself may be seized and 



Levy and Collection of Taxes. 377 

imprisoned, though such statutes are now very rare, and their 
enforcement more infrequent still. An action at law in many 
states may be brought on the tax, but, as it already may by 
statute have the same force as a judgment, the practical util- 
ity of an action resulting in nothing more than a judgment 
is problematical. The statutory lien of the tax upon land 
attaches to the land itself. It is valid even though the assess- 
ment was made to the wrong owner. It is very necessary, 
therefore, in buying property, that the purchaser should 
make sure that all taxes are paid, and it is customary to 
demand a certificate from the proper officers that all the 
taxes on the property are paid to date. Judicial sales of prop- 
erty usually provide that any taxes due may be paid by the 
purchaser and their amount deducted from the purchase 
price. The tax lien takes precedence of all prior, as well as 
all subsequent, incumbrances. It is therefore customary to 
insert in mortgages that the mortgagor shall pay all taxes 
as they fall due or, in the event of his failure to do so, the 
mortgagee may pay them and charge them against the mort- 
gagor, or, at his option, foreclose the mortgage on the ground 
of failure to pay the taxes. Were these provisions not 
inserted, the man who lends the money might find that his 
security has been eaten away by the failure of the borrower 
to keep up the tax payments. As soon as the land becomes 
charged with a certain fixed sum under the tax levy the lien 
attaches. It can be discharged only by payment, the remis- 
sion of the tax by the Legislature, or a judgment at law set- 
ting the lien of the tax aside. Penalties in the way of 
increased and heavy interest charges and collectors' fees may 
be added to the original amount of the tax bill in case the 
taxpayer fails to settle up within the required time. But the 
lien of the tax upon real property extends only to the partic- 
ular property taxed. A man may keep up the taxes on one 
farm and let them run on another until the amount of the 
taxes against it is greater than its value, and yet the farm 
on which the taxes are all paid will be free and clear from 



378 Levy and Collection of Taxes. 

all incumbrance. In this way the tax lien on real property 
differs, as we have seen, materially from the tax lien on per- 
sonal property. 

TAX SALES. 

If the taxes are not paid the property may be sold for the 
unpaid taxes. A tax sale usually amounts to but little more 
than a speedy method for securing the proceeds of the tax, 
the purchaser at the sale furnishing the ready money and 
looking to the owner of the property, or ultimately to secur- 
ing it as his own, for his remuneration. The injustice of per- 
mitting any one to acquire title to valuable property simply 
by paying the taxes on it, is such that the courts have sur- 
rounded tax titles with such meshes of technicality that 
property secured through a tax sale of date later than 
thirty or forty years is very difficult to sell or mortgage. A 
supreme court judge of New Hampshire once declared in a 
written opinion that "a tax sale deed is prima facie void." 
This is not quite true, but there is certainly an even chance 
of its being set aside if the owner or his heirs act with any 
reasonable promptness. There must be a notice of the time 
and place of the sale. The property must be sold by the 
proper officer, and he cannot himself become a purchaser at 
the sale. In some states only so much of the property can be 
sold as is necessary to pay the taxes and costs, if it is in any 
way divisible. Tax sales cannot be ordered by a subordinate 
political division of the state without legislative authority. 
In some states the personal property of the taxpayer is made 
primarily liable in the same way as in a judgment, and then 
the sale is valid only if due diligence has been used to get 
any personal property which may exist. The notice of the 
sale must contain a description of the property, the amount 
of the tax, the year of the assessment and the name of the 
true owner. All of these matters must be attended to strictly, 
or the sale will be vitiated. The requirements are so techni- 
cal that where the law provided that printed notices of the 



Levy and Collection of Taxes. 379 

sale must be posted, the court set the sale aside because the 
notice posted was in writing, instead of being printed. The 
notice is often required to be by publication in a newspaper 
circulated in the district, but if personal service of the notice 
is required by the statute it must of course be made. The 
sale must be held at the time and place advertised, and by 
the officer authorized to hold it. It must be open to the pub- 
lic, fair and with free and full competition in the bidding. 
It must be for cash, and the officer making it must file the 
report required by the statute. When the sale has been 
made and the property struck off to the purchaser, the latter 
receives a certificate of his purchase. At any time before the 
time limited by the statute expires, the owner or his heirs, 
his trustee or guardian or anyone holding to him a confiden- 
tial relation, may redeem the property by offering the 
amount of the tax, interest and costs to the purchaser on the 
sale. The law often provides that the amount due may be 
paid directly to the county or other treasurer, who turns it 
over to the purchaser on the sale. If the money is paid by 
any one other than the owner for his own benefit there is no 
redemption. The person who pays it simply buys the inter- 
est of the purchaser, with all of his rights and liabilities. 
The mere tender of the proper amount by the person who 
has the lawful right to tender it, is sufficient to effect the 
redemption, even though the money offered were refused by 
the purchaser on the tax sale. The tender may be made by 
an executor or an administrator of the owner, or even by one 
who has a mortgage interest in the property. 

TAX SALE DEEDS. 

The time for redemption is fixed by statute and varies in 
the different states. When it expires, however, the pur- 
chaser at the sale is entitled to a tax sale deed of the prem- 
ises from the proper officer. The time for redemption, how- 
ever, does not affect persons who were minors when it 



380 Levy and Collection of Taxes. 

expired, or insane people, or persons laboring under any 
other legal disability. Usually it does not begin to run until 
that disability is removed. Any fraud or deception practiced 
by the purchaser, which prevented the redemption of the 
property within the required time, would be sufficient to 
invalidate his deed. If he owed a debt to the person whose 
property he had bought at tax sale sufficient to equal the 
amount of the claim against it, courts of equity in some 
states would declare that there had been an equitable 
-redemption. The statutes usually require, further, that a 
notice that the time has come when the property must be 
redeemed in order to save it must be given to those inter- 
ested by the person desiring to acquire the tax title. If such 
notice is required, it must be given, and given in strict 
accordance with the statute, if the tax deed is to be valid. 
The notice sometimes may be made by publication in the 
newspapers, and sometimes it is required to be made per- 
sonally. 

From this brief statement of some of the technicalities 
surrounding the acquirement of title to property through tax 
sales, the reader will not have much difficulty in observing 
the extreme danger of placing any reliance on them unless 
they have been supported by a long lapse of years, have actu- 
ally been declared valid by the courts in a litigation which 
has reached its final determination, or the title is insured by 
some responsible company. Of course it does not follow 
because the proceeding is difficult and technical that a valid 
title cannot be acquired thereby, and the fact is that most 
of the property in the country at one time or another has 
been bought and sold for taxes. The difficulty arises out of 
the natural reluctance of both courts and Legislatures to 
have a man lose his property altogether, even through his 
own shiftlessness and neglect, merely because he does not 
pay his taxes as they fall due. The state often itself buys in 
property at tax sales, and some statutes provide for the for- 



Levy and Collection of Taxes. 381 

feiture of property directly to the state for the non-payment 
of taxes. When the title passes through the hands of the 
state it is usually better than when through an individual 
purchaser, as the state may assert rights which an individual 
cannot have. 



CHAPTEE XL. 

PUBLIC MOEAL OBLIGATIONS. 

Payment of Debts— To Compensate for Public Services— Pensions- 
Recognition of Military Services — Our Pension System — General 
Pension Acts — Poor Laws. 

The moral obligations to private individuals resting upon 
the public in its governmental and sovereign capacity, are 
recognized as just subjects of public expenditure. They may 
be divided into two great classes, those which it is a credit 
to the government to pay and almost an equal credit to the 
individual to receive, and those which it is only humane in 
the government to recognize, but which are considered as 
bearing with them some sort of opprobrium to accept. But 
they all rest upon the same idea. The pension to the poet- 
laureate in England, and to the wounded veteran or his 
widow in America, rest upon the same principle as does 
money voted for the support of the poor, the care of the 
insane, the reformation of criminals. In the first class, the 
government recognizes that it has received, in morals and 
justice, a service which it should compensate, as far as it 
may, in money; in the second, that no matter how useless, 
shiftless or criminal an inhabitant of the state may be, the 
state owes to itself and to him the duty of seeing to it that 
he shall not starve or freeze to death by reason of his weak- 
ness, crime or folly. Of late years a third moral obligation 
has been asserted, namely, that the state owes to every one 
of its inhabitants willing and able to work the opportunity 
of obtaining employment; that it has no right to pauperize 
any man by giving him something for nothing; in other 
words, that it should give him an opportunity to serve the 
state, and then pay him for it. 



Public Moral Obligations. 383 

payment op debts. 
The state is under moral obligation to pay its debts. The 
obligation may in many instances be enforceable where it 
arises on contract, and there is a method of collecting the 
debt at the time the contract is made; but otherwise, there 
is no legal obligation to pay, and the expenditure of the pub- 
lic money then is an act of grace and rests upon the public 
moral obligation. But the debt may not arise in contract at 
all. A citizen may be injured through the negligence oi 
some state officer, and that officer be entirely irresponsible. 
Statutes are frequently passed giving a right of action on the 
claim and permitting the private citizen to sue the sovereign 
people just as though the injuries had been inflicted by the 
servant or employee of some private corporation or indi- 
vidual. 

TO COMPENSATE FOR PUBLIC SERVICES. 

If by reason of his public spirit a man assume the office 
of highway commissioner and becomes personally liable in 
damages as a result of some unforeseen accident, for which 
he is nevertheless legally responsible, the state often recog- 
nizes the moral obligation to reimburse him. If a conflagra- 
tion is raging in a big city, and it is necessary to tear down 
buildings and destroy private property to prevent the spread 
of the fire, the person whose property is thus destroyed has 
no right of action against the state, but the moral obligation 
to reimburse him is usually fulfilled. If, through a flood in 
the highway, a way of necessity were made by the public 
across a man's wheatfield and his crop partially destroyed, 
he would have no right of action against the excusable tres- 
passers, but the state would be under moral obligation to 
reimburse him, and would probably do so. 

PENSIONS. 

It is under the same theory of moral obligation that pen- 
sions are awarded. In England, authors, artists, and poets 
were often pensioned by the government. In ancient times 



384 Public Moral Obligations, 

these callings were not supported as they are now by the 
public. The successful artist, poet, or philosopher usually in 
these days finds reward for his services from publishers and 
institutions of learning and, in this country, the custom of 
giving such persons either public titles or public money has 
never been adopted. But if some great discovery should be 
made, which, from its nature, could not be patented, the 
moral obligation of the public to reward such service might 
well support the expenditure of public money in the form 
of a pension. 

RECOGNITION OF MILITARY SERVICES. 

The payment of money in the form of pensions in recog- 
nition of military services was instituted in this country 
shortly after the Revolution, and the record of the United 
States in caring for its citizen soldiers is the wonder and 
admiration of all foreign countries. We expend annually 
in pensions nearly as much as do foreign governments in 
maintaining their oppressive military establishments. But 
as the money is taken out of the pockets of the people and 
paid back into the pockets of the people without any present 
service in return, the country as a whole is less oppressed by 
the system than by the expenditure of the same amount of 
money in maintaining a military establishment. 

OUR PENSION SYSTEM. 

The Department of the Interior has general supervision 
over the payment of pensions. Under the present laws, any 
person who was regularly enlisted in the United States serv- 
ice in the Civil War, and who was disabled from wounds or 
sickness from subsequently securing a livelihood, may pro- 
cure a pension. The legal representatives are entitled to 
receive the arrears of pensions due. Pensions are also 
awarded to veterans of the Mexican War and the War of 
1812. Before the pension is awarded, proof must be fur- 
nished the department that the applicant is entitled to it, 
and there are strict laws to guard against fraud. Pension 



Public Moral Obligations. 385 

money and real property bought with pension money are 
exempt by law from levy, seizure, or sale for the payment 
of debts under legal process. 

GENERAL PENSION ACTS. 

It was not long ago proposed in the English parliament 
to pension every man in the country who had reached the 
age of sixty years, who was unable to support himself or his 
family. Here was a proposition which undertook the pro- 
vision of a fund for the support of the poor without any dis- 
credit attaching itself to the payment of that fund, and as 
a moral obligation of the government. !N~o such theory of 
pension payment has as yet established itself in the civilized 
world. The nearest practical approach to it is the giving 
of public work to laborers because they need the money to 
support their families, rather than because they are able to 
do it as well as others who can be found to undertake the 
task. The practical advisability of maintaining men in inde- 
pendence, rather than as paupers on the one hand, and the 
theory that the government should conduct its business upon 
business principles, on the other, here come into direct con- 
flict, and the matter must be settled by the social scientist 
rather than by the lawyer. 

POOR LAWS. 

While the law does not require that the government 
should give every man an opportunity to work, it does recog- 
nize the moral obligation of the public to support those who 
are unable by reason of poverty and physical weakness, or 
both, to support themselves. Statutes are everywhere passed 
for the relief of the poor. Most of the state constitutions 
require the several counties to provide poor houses for the 
aged, infirm, and unfortunate, and asylums for the deaf- 
mute, blind, and insane. In other states, where the coun- 
ties do not appear to have done this duty with proper scien- 
tific skill, and in some states, with ordinary humanity, the 
relief of the blind, deaf-mute, and insane is undertaken 



386 Public Moral Obligations. 

through the instrumentality of state boards and commis- 
sions, in institutions supported directly by the state, and the 
results have proved beneficial. Almost everywhere the coun- 
ties still have charge of the poor houses for the care of pau- 
pers. In many states paupers are disfranchised. The pro- 
portion of expense to be borne by the counties, cities and 
towns, and by the state at large for the care and support of 
the poor, is wholly regulated by statutes. They usually pro- 
vide for the appointment of oversees of the poor, whose 
duty it is to investigate all requests for assistance, and who are 
often called upon to bring legal proceedings to compel those 
legally chargeable with the support of poor persons to per- 
form their duties. The overseer often is called upon to exer- 
cise this duty against the supposed father of an illegitimate 
child which is likely to become a town charge. As the pau- 
per has the right to support from the town where his last set- 
tlement was, disputes often arise between different localities 
concerning which is chargeable with the burden, and pau- 
pers are sometimes given free transportation from one dis- 
trict to that in which they are supposed to reside. The sys- 
tem often results on the one hand in free rides for shiftless 
people, and, on the other, in sending undesirable citizens 
back and forth before they are finally located in the proper 
almshouse. Statutes often provide a penalty for bringing 
into the state persons who have no visible means of support, 
and similar persons who undertake to enter the country as 
immigrants are often sent back whence they came by the 
immigration commissioners. The agony of some of these 
poor creatures thus turned away from our doors is such that 
efforts are being made to have the government establish its 
inspection at foreign ports and thus prevent a double jour- 
ney across the ocean by those who cannot be admitted to the 
country when they get here. In addition to the persons con- 
fined in the almshouse, the overseers are often empowered 
by statute to give out-door relief of a temporary character 
to those in temporary distress. 



CHAPTER XLL 
ELECTIONS. 

Federal Elections— Powers of the State Legislatures— Ballot Systems 
Qualifications of Electors — Calling Elections — Nominations — Elec- 
tion Officers — Voting— Ballots — Majorities and Pluralities — Corrupt 
Practices — Punishment of Offenses. 

An election is the instrumentality through which the 
popular will is expressed and by which, under the authority 
constituting the form of government, the wishes of a major- 
ity or a plurality of the lawful voters is made binding upon 
the minority. The right of voting is not an inherent one; 
nor is it inalienable. It is rather a privilege or a franchise, 
granted by the government and which, by the government, 
may be taken away. In fact, it is often spoken of as the 
"elective franchise." Nor does the mere fact that persons 
holding this franchise, take it into their heads to get together 
and vote, constitute an "election" which will be of any bind- 
ing force. There is no inherent power reserved in the people 
to hold elections. The time, the place, and the purpose of 
the election must be fixed by governmental authority, to give 
its result binding force upon anybody. The government 
must, furthermore, provide the means for holding the elec- 
tion. 

FEDERAL ELECTIONS. 

The authority for holding federal elections is conferred 
by the Constitution of the United States, the acts of Con- 
gress and the laws of the several states passed pursuant to 
the Constitution. As the House, of Representatives is the 
judge of the qualifications of its members, it may happen 
that an election for congressman may thereby be invalidated 
and a new election become necessary. The election of Sen- 
ators is by the Legislatures of the several states. If Senators 

387 



388 x Elections. 

were to be chosen by the people at large, on a general ticket,, 
the result would have to be brought about by a constitutional 
amendment. The federal Constitution gives to the Legisla- 
tures of the several states the power of determining how the 
presidential electors, equal in number to the representatives 
of the. state in Congress, shall be chosen; and under this 
power the manner of selection has differed in the different 
states, and from time to time has been changed. In Michi- 
gan, for instance, the state was at one time apportioned into 
electoral districts, based on the division into congressional dis- 
tricts, and the electoral vote of that state was thus divided 
instead of being cast solidly for one party candidate or the 
other. The power of holding elections, the qualifications of 
the voters and the general frame of government in the ter- 
ritories are fixed by Congress. In the states the qualifications 
of the electors are fixed by the state laws, even for 
federal offices, subject to the provisions of the fifteenth 
amendment with regard to "race, color and previous condi- 
tion of servitude." But while the states determine the qual- 
ifications of voters, Congress has the right to prescribe the 
time, place and manner of holding the congressional elec- 
tions, and in some instances, especially in the reconstruction 
period, has exercised this right very freely. Congress has 
the right also to deprive persons of citizenship, and the exer- 
cise of this right would, of course, affect the qualification to 
vote. While the states may, on the one hand, take away the 
right to participate in elections, on grounds other than that 
of race, color or previous condition of servitude; on the other 
hand, their representation in Congress may be reduced pro- 
portionately unless the right had been taken away for crime 
or rebellion. The right of suffrage, once granted by a state 
Constitution, can be taken away only by an amendment to 
that Constitution. 

POWERS OF THE STATE LEGISLATURES. 

The Legislature has the implied power to enact laws pre- 
serving the purity of elections and to guard against frauds 



Elections. 389 

and other abuses, provided it does not injuriously restrict 
the right itself, under color of regulating it, or does not enact 
regulations which conflict with those prescribed in the Con- 
stitution. In the case of Capen against Foster, 12 Pickering, 
485, Chief Justice Shaw of Massachusetts said: "The Con- 
stitution, by carefully prescribing the qualifications of voters, 
necessarily requires that an examination of the claims of 
persons to vote, on the ground of possessing these qualifica- 
tions, must at some time be had by those who are to decide 
upon them. If, then, the Constitution has made no provision 
as to the time, place and manner in which such examination 
shall be had and yet such an examination is necessarily inci- 
dent to the exercise and enjoyment of the right of voting, it 
constitutes one of those subjects respecting the mode of exer- 
cising the right in relation to which it is competent to the 
Legislature to make suitable and reasonable regulations, not 
calculated to defeat or impair the right of voting, but rather 
to facilitate and secure the exercise of that right." 

It is under this theory that the powers of the Legislature 
have been extended not only to the general control of the 
machinery of elections, the registering of voters, and similar 
precautions against illegal voting and frauds in the count; 
but to regulating the machinery of political parties, the 
making of the nomination of candidates, and the control of 
caucuses and primaries. In the absence of constitutional 
provisions restricting the franchise to males, the Legislature 
has the power, without constitutional amendment, to extend 
the power of voting to women. The power to B.x a time for 
registration prior to an election, and provisions that those 
who do not register shall not vote has been denied in some 
states; but it is now generally conceded and practiced. 

BALLOT SYSTEMS. 

What is known as the "Australian ballot system" was 
devised in 1857 by the Legislature of South Australia, and 
has since been adopted generally throughout the English 



390 Elections. 

speaking world. In its main features it provides for an offi- 
cial ballot, printed at public expense, with strict safeguards 
to secure secret voting. The laws regulating the system pro- 
vide for the making of nominations by the rival parties in a 
prescribed manner, and also means by which "independent" 
nominees can secure a place on the official ticket. Spaces 
must be left, however, for voters to write in any names they 
choose, for they have the right to vote for whom they please, 
whether regularly nominated or not. In actual practice this 
right has become merely theoretical; but it must be pre- 
served in order to make the ballot constitutional. 

In the last decade American inventors have been devis- 
ing and perfecting ballot machines which, while preserving 
the secrecy of the ballot, both register and count the votes 
by machinery. The power of the Legislature to regulate the 
details of elections is well illustrated by the laws which have 
permitted the experiment in this system of voting, which 
promises to spread and perhaps supersede the now general 
Australian system. 

QUALIFICATIONS OF ELECTORS. 

Suffrage is confined to citizens of the United States, 
except occasionally where laws provide that those who have 
expressed their intention of becoming citizens in due time, 
may vote. In all of the states 21 years is fixed as the voting 
age. As citizenship is essential, Chinese, who are excluded 
from citizenship, cannot become voters, and Indians, who pre- 
serve their tribal relations and do not become citizens, cannot 
vote. If persons of other races once become citizens they 
cannot, under the fifteenth amendment, be deprived of the 
franchise on the ground of race. Under most of the state 
constitutions, the franchise is limited to the male citizens, 
and this is held not to be in violation of either the fourteenth 
or fifteenth amendments. In some of the newly admitted 
states women can vote ; and in some of the older states they 
are given the right to participate in school elections. In 



Elections. 391 

some of the Southern states educational qualifications have 
been introduced. There are no states that, at present, 
require property qualifications; but in many states the pre- 
requisite of paying taxes is necessary to secure the right of 
voting. Such taxes may be paid by third persons in order 
to enable the voter to exercise his franchise ; and though they 
have often proved a ready source of revenue to the state, poll 
taxes have also sometimes been a means for corruption. 
The state constitutions require residence in the state for 
from three months to two years and a half, to give the right 
of voting; and, in many states, the residence must have been 
a particular locality within the state for a specified time in 
order to give the right of voting in that locality. A man 
must abandon one residence before he can acquire another; 
and, of course, cannot be a legal voter at both places. The 
occupation of a merely temporary residence, with the inten- 
tion of ultimately returning to the former residence, does 
not constitute a legal change of residence which will confer 
the right of voting at the new abode. Residence does not 
become changed while in the military service of the United 
States, while a student at an institution of learning, while 
confined in an almshouse or charitable institution, or in a 
prison. In some states paupers cannot vote, and all deny 
the franchise to idiots and lunatics. Citizenship may be for- 
feited for crime, or desertion from the United States army 
or navy. A pardon releases the criminal or the deserter 
from these disabilities. 

CALLING ELECTIONS. 

Not only must an election be authorized by due provision 
of law; it must be properly called by the duly constituted 
authorities, and all of the preliminary requirements must 
be complied with. It must be called by the proper officer 
or body; the power to call it cannot be delegated to 
others; and it must be called in the manner prescribed by 
law. Sometimes the statute provides that the election may 



392 Elections. 

be called upon petition, and in that case the petition must 
be properly drawn and signed, and the election cannot be 
held without it; or if held, is invalid. Where a special elec- 
tion is held, due notice and proper proclamation thereof by 
the constituted authorities is necessary, to give it validity. 
Notice of an election for a particular purpose will not author- 
ize an election for any other purpose; and there must be a 
substantial compliance with any statute requiring the state- 
ment of the purpose of the election in the notice thereof. 

NOMINATIONS. 

The object of nominations, as we have seen, is to deter- 
mine what candidates are entitled to a place on the official 
ballot; for the voter has the right to vote for any person 
whom he pleases to select. It is often provided that a voter 
having participated in the nomination of one candidate can- 
not participate in the nomination of another for the same 
office. Statutory provisions as to the time, place and manner 
of filing nominations must be complied with strictly. An 
independent candidate cannot appear as a party candidate or 
use the device or emblem of any established party. In prac- 
tice, except in exceptional cases, where independent nomina- 
tions are made, the right to nominate is confined to the polit- 
ical parties, A party may nominate any one qualified for the 
office, even though he be of a different political faith, or 
already the candidate of some other party. The nomination 
may be made either directly, at the party primary, or by 
representatives of the electors of the particular party at a 
nominating convention. Nominations are sometimes made 
by committees of such conventions to whom the power of 
making the nomination is delegated. These nominating- 
agencies differ as widely in the different states in regard to 
their methods of procedure, as the rules of law and practice 
governing them. Like all parliamentary bodies they are 
usually the sole judges of the election and qualification of 
their members. Where rival nominations have been made 



Elections. 393 

by conventions, each claiming to be the true and lawful rep- 
resentative of the party, the officer who files the nomina- 
tions, in some states, cannot pass on the legality of the cer- 
tificates but must file both. In other states the statutes give 
him power to decide the question. Where two rival factions 
each claim the right to the use of the party emblem, the 
officer filing the certificate of nomination can decide between 
them. 

ELECTION OFFICERS. 

Federal supervisors and deputy marshals formerly repre- 
sented the United States government at congressional elec- 
tions; but this act has been repealed, and now the officials at 
all elections are appointed pursuant to state statutes. The 
appointment is sometimes vested in local officials, and some- 
times in the courts. As a general rule, the inspectors and 
clerks conducting an election must represent both political 
parties, though this is not essential unless the statutes so pro- 
vide. In some states this has been regarded as establishing 
a political test for qualification to office, and hence illegal; 
but such appointments are generally upheld and, in fact, 
bi-partisan boards of various kinds are becoming general, 
popular and efficient in other branches of public life. Ordi- 
narily, the duties of such election officers are held to be "min- 
isterial," as distinguished from "judicial," in their character. 
They are supposed to carry out the provisions of the law and 
are liable to prosecution for illegally rejecting votes, while 
where provision is made , for a legal review of the count, 
their action can be reviewed and if illegal, reversed. Their 
misconduct will not, however, vitiate an election, unless it 
can be shown that the result was changed by their illegal 
action. If the vote of a qualified elector be maliciously 
rejected, he has a good cause of action for damages against 
the election inspectors responsible; and, in several states, 
statutes make them liable to specified penalties for miscon- 
duct. The compensation of election officers is fixed by the 
statutes of the various states, and is not uniform. 



394 Elections. 

voting. 
The manner of voting, whether by ballot or viva voce, 
prescribed by law, must be followed. The statutes, in gen- 
eral, provide for a secret ballot; and this has come to be con- 
sidered one of the safeguards of liberty. If the voter is 
unable to vote without assistance, the statutes usually pro- 
vide a method by which he can be assisted, and, even with- 
out such statutes, he probably has a constitutional right to 
such assistance and cannot be deprived of it. The statutes 
may fix a time, within reason, which a voter may be allowed, 
to prepare his ballot, as, without some such restriction, it 
might be impossible to record all of the votes in a particular 
election district. The election laws usually provide for chal- 
lenges to voters, and proof, on their part, of their qualifica- 
tion, upon the point challenged. If the voter refuse to take 
the oath prescribed when challenged, or to answer proper 
questions, his vote may be rejected. A ballot should not be 
rejected for the misspelling of a name of a candidate upon 
it, if, from the ballot and the circumstances of the case, the 
actual intention of the voter can be determined. 

BALLOTS. 

Where the statutes provide for the form, size, kind of 
paper, etc., to be used in ballots, or prohibit marks upon 
them by which they can be identified, the law must be fol- 
lowed strictly, as its purpose is to preserve the secrecy of the 
ballot and prevent fraud. Accidental marks on ballots should 
not be allowed to invalidate them. The use of pasters is now 
being generally discontinued, owing to the adoption of the 
Australian system and the use of ballot machines. Where 
the names of two candidates for the same office appear on 
the ballot, the one printed and the other written, the written 
vote will be presumed to represent the intention of the voter. 
Under statutes requiring ballots to be preserved and the bal- 
lot box to be unsealed only in case of a re-count ordered by 
the court, the latter has no power to order the box opened or 



Elections. 395 

the ballots produced, for any other purpose. The statutory 
regulations for the count, the return, and the re-count, if 
ordered, must be strictly followed, and there are usually pro- 
visions for the correction of the mistakes of election officers 
by the courts. 

MAJORITIES AND PLURALITIES. 

In the absence of statute a majority is necessary to 
choice, though this may depend to some extent upon local 
custom. But the Legislatures almost universally provide that 
a plurality is sufficient to constitute an election. The major- 
ity rule prevails in Connecticut ; and the result has been that 
several times, when the Democratic candidate for Governor 
had a small plurality, the election has been thrown into the 
Legislature, under the Constitution of that state, and a 
Republican Governor has been seated. As a general rule, 
where the candidate of the majority is for any reason ineli- 
gible, there must be a new election and the minority candi- 
date, although eligible, cannot be seated. A certificate of 
election, regular on its face, and granted by the proper offi- 
cers, is conclusive upon third parties and entitles the holder 
to the office, even while a contest over his election is in 
progress. 

CORRUPT PRACTICES. 

Where intimidation has been practiced to such an extent 
that voters cannot exercise their franchise in safety, the elec- 
tion may be invalidated. Where the result has been brought 
about by bribery, it is voidable; but occasional instances of 
bribery would not be sufficient. The statutes generally make 
bribery on the part of a candidate a disqualification for office. 
He is not liable for the act of an agent who bribes in his 
behalf, unless the latter can be shown to have acted by his 
direct authority. Bribery consists in the offering of a val- 
uable consideration for the giving or withholding of a vote. 
Undue influence, especially when practiced by an employer 
over employees, through a threat of discharge, may invali- 



396 Elections. 

date an election. Owing to the stringency of the law and the 
increased facilities for secret voting, such practices have 
become very rare. In many states the statutes forbid the 
selling or giving away of liquor within a certain distance of 
the polling place ; but while the violation of these regulations 
would bring punishment on the offenders, the result of the 
election would not be affected, if no other factor of corrup- 
tion entered into the case. 

PUNISHMENT OF OFFENSES. 

The statutes generally provide means for reviewing and 
correcting mistaken or fraudulent election returns, and 
severe penalties are prescribed and inflicted, in the criminal 
courts, for offenses against the safeguards placed around the 
exercise of the popular franchise. 



CHAPTEE XLIL 

PUBLIC OFFICERS. 

Who are Public Officers— Public Officers Classified— One Man Cannot 
Hold Two Incompatible Offices — Property Rights Incident to 
Office Holding — Qualifications for Office — Election and Appoint- 
ment — The Civil Service Laws — Preference to "Veterans — Oaths 
and Bonds — Removals — Ministerial, Judicial and De Facto Offi- 
cers — Liability of Officers Making Arrests. 

A public office is a public trust. This is not a mere trite 
phrase ; it is a more or less accurate definition of what a pub- 
lic office is. !STo man in this country can have any legal prop- 
erty in a public office. He cannot assign it, sell it, or leave 
it to his children. As it is not a property right, it is not the 
subject of contract. As it is not the subject of contract, it is 
not protected by the constitutional restraint forbidding the 
impairment of contracts by state Legislatures. On the other 
hand, one may make a contract with the government to do 
work for it. A person who thus contracts is not a public offi- 
cer. This is one of the reasons why it often becomes import- 
ant in law to know what is a public office and who are public 
officers. A teacher is hired for a year by a town board. Is 
she in public office? If she is, she can be dismissed at any 
time, during the year, without cause, and cannot get her 
salary for the balance of the year. If she is not, she can 
recover her full salary for the entire term of the contract 
and the Legislature itself could not take away that right. 

WHO ARE PUBLIC OFFICERS. 

A public office has been defined to be an employment on 
behalf of the government in any station of public trust not 
merely transient, incidental, or occasional. From this it will 
be seen that, in the case of our school teacher, she might or 

397 



398 Public Officers. 

might not be in public office, according to the nature of the 
position and the manner and character of her employment. 
If she simply contracted to do a certain amount of work for 
a certain sum, she would not be in office. If she were 
appointed to a position to which was attached a regular sal- 
ary, which position would remain, although vacant, were she 
removed, her position would probably be held to be public to 
such an extent that it is very doubtful whether she could 
recover any salary for the unexpired term, were she unjustly 
removed. Within constitutional restrictions, the legislative 
power, and power delegated by the Legislature, over public 
officers, is supreme. The duties of the office may be increased 
or varied and the salary likewise; the rights and privileges 
of the officer may be taken away, or the office abolished alto- 
gether. Powers so ample, and so likely to be abused, are 
frequently restricted by the state constitutions. Offices 
named in the Constitution and terms of office therein fixed 
are beyond this legislative power ; and general restrictions on 
the power of change and removal are often incorporated. An 
officer being a public agent, his acts, within the scope of his 
authority, and in the absence of fraud or collusion, bind the 
state and cannot be repudiated by it. 

PUBLIC OFFICES CLASSIFIED. 

A public office may be legislative, executive, or judicial, 
grouped according to the three distinct functions of govern- 
ment. They are also divided into ministerial offices, where 
the officer, in his acts, merely carries out the will of the law, 
without exercising any judgment and discretion as to the pro- 
priety of the act to be done ; and judicial offices, or offices in 
the nature of judicial, where the officer is called upon 
to exercise his own judgment and discretion. The distinction, 
although a difficult one, is often of great legal importance. 
A ministerial officer who wrongfully refuses to do his duty, 
can be compelled to do it by legal process; an officer who is 
vested with judgment and discretion, cannot be compelled to 



Public Officers. 399 

judge otherwise than that judgment and discretion, in him 
vested, have dictated. Public officers are also classified as 
local officers, such as town, county and municipal officers; and 
general officers, such as state officials. There are also obvi- 
ous distinctions between civil and military offices. 

ONE MAN CANNOT HOLD TWO INCOMPATIBLE OFFICES. 

As a general rule, one man cannot hold two public offices 
at one and the same time. The reason is that one man can- 
not be in two places at once, and cannot well serve two mas- 
ters. The rule fails with the reason for it; and, if the two 
offices are not in any way incompatible with each other, 
there is no reason in law or common sense why one man can- 
not hold them both. One man could not well be a Governor 
of one of the states and a member of the United States Sen- 
ate. He might run for Governor and, if elected, his term 
in the Senate would not necessarily end until his term as 
Governor actually began. A man might be a member of a 
Legislature and the deputy clerk of a court, or mayor and 
notary public at one and the same time, as the duties of the 
two offices would not conflict. The matter is usually regu- 
lated by the statutes and constitutions of the states, and the 
law often provides that a man holding one elective office can- 
not at the same time be a candidate for another. 

PROPERTY RIGHTS INCIDENT TO OFFICE HOLDING. 

By the weight of legal authority a man cannot assign any 
portion of his unearned salary, coming to him from a public 
office; such assignments being held as against public policy 
and void in many jurisdictions. "With salary earned, but not 
yet paid, the case is different. His property in his accrued 
salary is just as absolute as property in any other right of 
action. If payment is wrongfully refused, it may be sued for 
and usually a mandamus action will lie to compel the official 
withholding the money to pay it to the person to whom it 
belongs. As we have said, the office itself is everywhere in 
this country, held not to be property of any sort. Not only 



400 Public Officers. 

is this so; but there are the most stringent laws forbidding 
the giving anything of value for the purpose of securing offi- 
cial appointment. Contracts to secure an office for another 
through influence are against public policy and void. In a 
curious case, illustrative of this proposition, two persons were 
candidates for the same office. It was obvious that they 
could not both be successful. It was therefore agreed that 
one should pull out of the race, turn in and help the other to 
secure the place, and then that the successful candidate 
should divide the fees. When he got the place he declined 
to fulfill his part of the agreement. The court refused to 
enforce the contract, on the ground that it was against public 
policy, and void. Lobbying to secure favorable legislative 
action is a very common practice. Where an attorney is 
retained to give open and honorable professional services to 
secure the legislation wanted, the lobbying contract is not 
open to legal objection; but if personal influence upon and 
private solicitation of members of the Legislature are to be 
employed, the lobbying contract is illegal. Agreements for 
compensation for securing official contracts, through acquaint- 
ance and influence with officials, have been held illegal "in 
some states, and in other states they have been sustained, the 
decisions varying more or less with the circumstances of the 
case and the actual course of business pursued. Clearly, if 
the influence exercised were shown to be of a corrupt charac- 
ter, the contract would everywhere be held to be void. 

QUALIFICATIONS FOR OFFICE. 

Most states forbid office holding by an infant. In few of 
them can women hold office. Where they do hold office, and 
there is no statute on the subject, the office held must be of 
a purely ministerial character. The courts of Massachusetts 
held that, in the absence of statute, a woman could not prac- 
tice law, as the vocation was, in a sense, a judicial function; 
but that she could be a school commissioner, where the duties 
of the office were purely ministerial. Immediately after the 



Public Officers. 401 

decision the Legislature passed a statute admitting women to 
the bar when possessing the necessary legal requirements. 

The Constitution of the United States provides that the 
President must be at least 35 years of age, a natural born cit- 
izen and a resident in this country for at least fourteen years ; 
that a United States Senator must be 35 years of age, at 
least nine vears a citizen, and an inhabitant of the state from 
which he is chosen; that a Representative in Congress must 
be seven years a citizen, at least 25 years of age, and an 
inhabitant of his state. The state constitutions often provide 
restrictions upon the age and citizenship of state officers. 

Any circumstance which would disqualify from voting, 
such as conviction of crime, infancy, lunacy and the like, 
will usually be also a disqualification for office holding. 

ELECTION AND APPOINTMENT. 

Offices are either appointive or elective. The manner of 
securing office by election is considered fully in the chapter 
on elections. Appointments may be either absolute, condi- 
tional, as where the advice or consent of a legislative body is 
necessary to make them effective; or restrictive, where they 
are made pursuant to civil service laws. The absolute power 
of appointment is vested in the Legislature, subject to the 
Constitution, as elsewhere indicated. Where it is to be made 
by a Governor, or other executive officer, by and with the 
advice and consent of the Legislature or other legislative 
body, the appointment is not complete until the legislative 
body has consented and the executive has signed the com- 
mission. "Where the President of the United States died, 
after signing certain commissions of officers whose appoint- 
ment had been confirmed, but the commissions had not been 
delivered, it was held that the appointment was complete. 

THE CIVIL SERVICE LAWS. 

These have been adopted by Congress to regulate appoint- 
ments to positions under the federal government, and the 
states have very generally extended the system to the state 



402 Public Officebs. 

civil service. A volume might be written on the subject of 
civil service regulations alone. The various statutes cus- 
tomarily provide for commissions to receive applications and 
conduct examinations for the different branches of the serv- 
ice, empowering such commissions to prescribe the necessary 
minor rules and regulations. These customarily provide the 
formalities for applications; and application blanks are pre- 
pared in conformity therewith. Applicants are then submit- 
ted to test examinations concerning their proficiency for the 
position which they seek: and a list of applicants is prepared, 
in order of their standing, from which list the appointing 
officer must make his selection, when the office to be filled is 
within the class governed by the civil service laws. It is 
usually customary to give the appointing officer a choice from 
the three names standing highest on the list. In the state 
of ISTew York, recently, the Legislature attempted to pre- 
scribe that the appointing officer must select the man stand- 
ing first and that his choice must be confined to that man. 
The courts held that this provision was repugnant to the 
Constitution of that state, and that the power of appoint- 
ment necessarily involved at least some choice; that to 
deprive the appointing power of any choice at all was uncon- 
stitutional. Whether this ruling will be followed in other 
states, under the limitations of other constitutions, remains 
to be seen. In any event, wisely or unwisely, the civil service 
laws have, to a great extent, circumscribed the freedom of 
choice in applicants by appointing powers. 

PREFERENCE TO VETERANS. 

The United States statutes, and many of the state laws, 
give a preference to veterans of the Civil "War, over other 
applicants for office ; and usually provide means for enforcing 
this right, by veterans, in the courts. The enforcement of 
the "Veteran Acts," so called, has, in many states, proved a 
fruitful source of litigation. Courts have often been as 
reluctant to grant the privilege as Legislatures have been 



Public Officers. 403 

free to confer it. In some of the states the preference of 
veterans has been rendered more imperative by the incorpo- 
ration of the provisions demanding it into the state Consti- 
tution. 

OATHS AND BONDS. 

Upon entering an office a public officer must usually take 
an oath of office. The provision is simple and is usually com- 
plied with without much difficulty. "Where the officer is to 
have custody of public money, he is generally required to 
furnish a bond for the faithful performance of his duties. 
As the bond is to the people, suretyship on an official bond 
differs in the liability it creates from the ordinary contract 
of surety; and bondsmen often find that they are called upon 
to pay when they have defenses which would be ample as 
against any individual, but which cannot be pleaded against 
the state. The rights of co-sureties against each other, or 
against the person whose official fidelity was guaranteed, are 
the same as in any other contract of guaranty. In recent 
years it has become the custom for incorporated companies, 
formed for the purpose of such transactions, to sign surety 
bonds and undertake the liability, for a reasonable considera- 
tion. This is often a better protection to the public; and an 
officer who must give a bond, usually prefers to pay a little 
something for it, than to impose upon the good nature of 
his friends. Unless the bond is, in its express terms, retro- 
spective, it only covers future acts and is limited to the term 
of office for which it is given. The bondsmen are liable for 
the faithful performance of his duty by the officer ; and there 
is even some question whether they must not make good 
losses caused by robbery or the acts of public enemies, even 
though the officer were not at fault. 

REMOVALS. 

An appointment for an indefinite term usually implies 
that the appointing power may remove at pleasure. Removal 
may come about by the expiration of the term of the office, 



4:04c Public Officers. 

or by the officer's reaching the age at which the statute pro- 
vides he shall retire. It is generally the rule that an officer, 
whose term has expired, holds over until the choice and qual- 
ification of his successor. Statutes often are enacted which 
give office holders of a certain class the right to notice and 
a hearing before they can be removed. The hearing usually 
implies the presentation of written charges and the taking 
of testimony which the office holder, whose removal is sought, 
can meet in the same manner. An appeal to the courts fre- 
quently lies from decisions adverse to the holder of the office. 
The statutes in many cases permit this directly, and in others 
forbid it. The Legislature is supreme in the matter. The 
remedies provided for wrongful removals and the proceedings 
thereunder are often intricate and technical. School teach- 
ers, policemen, firemen and the like are often protected in 
their tenure of office by such provisions, and in nearly all jur- 
isdictions veterans are protected from removal except upon 
charges duly presented, notice, and a hearing, in which they 
have an opportunity to meet the charges and disprove them. 

MINISTERIAL, JUDICIAL AND DE FACTO OFFICERS. 

The duties of a ministerial officer may be delegated to a 
deputy. An officer cannot delegate his judicial functions, any 
more than he can delegate his faculty of forming a judgment 
itself. A ministerial officer is liable to individuals whom he 
wrongs, in the course of his duty. Sometimes an officer has 
both ministerial and judicial duties. A highway commis- 
sioner, for instance, must judge of the propriety of opening 
or closing a highway and he is not liable to any one for his 
errors of judgment ; but he is supposed to keep the highway 
in repair. If he fails to do this, and had funds in his hands 
provided by the town for the purpose, he is personally liable 
to the individual injured through his negligence. He has 
not made an error of judgment, but has failed to carry out 
the ministerial functions entrusted to him; nor can the town 
reimburse him for the loss caused by his negligence, without 



Public Officers. 405 

the permission of statute. Such statutes are commonly 
passed, however. Judicial officers are always protected from 
liability, unless they undertake to do that over which the 
law has never given them jurisdiction. The acts of a mere 
usurper, of course, can never be of official validity ; but where 
an office is held by a person under some color of right, even 
though it afterwards turn out that he was not legally in 
office, he is called by lawyers a "de facto" officer, and his 
acts, during the time he held the office, are legal and valid. 

LIABILITY OF OFFICERS MAKING ARRESTS. 

Police officers and sheriffs making arrests, or holding per- 
sons charged with crime in custody, are often made defend- 
ants in actions for false imprisonment. This general sub- 
ject was considered under the head of wrongs. It may be 
said here that, no matter how gross an offense the wrongful 
act of the officer making the arrest may be, the state is never 
liable to the party injured. His remedy is against the officer 
alone. 



CHAPTEK XLIII. 
PUBLIC CORPORATIONS. 

The County and the Town — Municipal Corporations— Power to Change 
the Charters — Ordinances and By-Laws — Municipal Contracts — 
Municipal Securities— Property of Public Corporations— Municipal 
Officers — Letting of Contracts. 

The states carry on the machinery of internal administra- 
tion by means of various agencies or local self-governing insti- 
tutions with limited and prescribed powers. Some of these 
public corporations are formed chiefly for the purpose of car- 
rying on the business of the state at large, in certain of its 
sections. Such bodies have no charter and are not concerned 
to any extent with local administration. Of this class are 
counties, school districts and road districts. On the other hand, 
cities, towns and villages are formed by charters, prescribed 
by the Legislatures and are, in themselves, miniature republics 
for all purposes of local self-government, in so far as they are 
entrusted with governmental powers. As an Ohio judge 
puts it: 

"A municipal corporation proper is created mainly for the 
"interest, advantage and convenience of the locality and its 
"people; a county organization is created almost exclusively 
"with a view to the policy of the state at large for purposes of 
"political organization and civil administration, in matters of 
"finance, of education, of provision for the poor, of military 
"organization, of the means of travel and transport, and espe- 
cially for the general administration of justice. With scarcely 
"an exception, all the powers and functions of the county 
"organization have a direct and exclusive reference to the 
"general policy of the state, and are, in fact, but a branch of 
"the general administration of that policy." 

THE COUNTY AND THE TOWN. 

In his excellent work on "Civil Government in the United 
States" Mr. John Fiske thus sums up the difference between 
the government of the New England village and that of the 
Virginia county, observing: 

406 



Public Cobpoeations. 407 

"First. That in !New England the management of local 
"affairs was mostly in the hands of town officers, the county 
"being superadded for certain purposes, chiefly judicial; while, 
"in Virginia, the management was chiefly in the hands of 
"county officers, though certain functions, chiefly ecclesiasti- 
cal, were reserved to the parish. 

"Second. That in New England the local magistrates 
"were almost always, with the exception of justices, chosen by 
"the people; while, in Virginia, though some of them were 
"nominally appointed by the governor, yet, in practice, they 
"generally contrived to appoint themselves — in other words, 
"the local boards practically filled their own vacancies and 
"were self-perpetuating." 

The two systems were types of rival styles of local govern- 
ment that spread throughout the Union ; the counties in some 
places being divided into villages or parishes, and in others 
the villages being united into counties. In E"ew England the 
villages still have their "town meetings," where the villagers 
assemble and vote directly on all matters within the cogniz- 
ance of the town authority. Elsewhere, throughout the 
country, it has been found more practicable to govern locally 
by representatives delegated to town and county legislatures, 
clothed with restricted authority by the state. But in all 
parts of the country the distinction is preserved between the 
county, which is a political subdivision of the state, concern- 
ing itself with delegated state functions, with its county 
courts, clerks and sheriffs, its poorhouses and its militia, and 
the municipal corporations, consisting of towns, villages and 
cities, which come into being through charters granted by the 
Legislature, and within the limits of those charters, become 
little self-governing republics. 

MUNICIPAL CORPORATIONS. 

These include towns, cities and villages, differing more 
according to their size than in any essential political aspect. 
They exist only by express enactment of the Legislature which. 
usually creates such a corporation by passing an act which 
declares that the inhabitants of a certain territory, the bounda- 



408 Public Corporations. 

ries of which are named, shall constitute a body politic and 
corporate under the name and style of the village, town or 
city of Blank. The charter then provides for the particular 
form of government, village trustees, town council, city board 
of aldermen, the qualification of voters, the mode and time of 
holding elections and details specifically the powers of the 
body politic thus created. These powers usually include the 
right to create debts, generally limited to a certain per cent, of 
the assessed valuation, to levy and collect taxes for corporate 
purposes, the making of local improvements and levying local 
assessments therefor, the enacting of health ordinances, the 
prevention and abatement of nuisances, the establishment of 
fire and police departments, public parks and public markets, 
laying out and paving of streets, water works and sewers, the 
establishment of corporate courts for the punishment of petty 
offenses and the enforcement of ordinances. 

POWER TO CHANGE THE CHARTER. 

The Legislature which grants the charter may change it at 
any time, take away powers which it has granted and assume 
them itself, unless the Constitution forbid; or take the charter 
away altogether and unite two municipal corporations into 
one; or divide one municipal corporation into two. One 
thing it can not do, however. It cannot take from the corpora- 
tion which it has authorized to contract debts, the power of 
paying for them when they are once contracted. ISTo municipal 
corporation can be permitted, through legislative assistance 
or connivance, to avoid paying its just and legal obligations. 
But the debts can be contracted only within the powers con- 
ferred by the Legislature. If the powers are exceeded, the 
creditors are without redress, unless the Legislature choose to 
ratify, as it often does, the otherwise illegal act of the muni- 
cipal corporation. 

ORDINANCES AND BY-LAWS. 

Acts in the nature of local laws, which are passed by the 
proper assembly or governing body of municipal corporations, 



Public Corporations. 409 

have tlie full force of statutes in the limits of the body politic 
which enacts them. But it must always be borne in mind that 
while they have the force of statutes, when they have any 
force at all, they are not acts of the Legislature and are sub- 
ject to rules quite different from those controlling such acts. 
They must be enacted by the proper body, duly assembled, 
and in the manner and form prescribed by the charter. They 
cannot enlarge or change the charter, and must be consistent 
with the laws of the state as well as with its Constitution. 
They must be reasonable and must be consistent with the pol- 
icy of the state as well as with its laws. The courts will 
declare void ordinances that they regard as oppressive or in 
contravention of common right, unless such an ordinance were 
adopted pursuant to the express authority of the Legislature. 
All steps prescribed for the passing, signing, publishing and 
recording of ordinances, must be followed strictly. The ordi- 
nances of a town or village are often termed "by-laws. 7 ' They 
are subject to the same rules and differ practically only in 
name and in the size of the community to which they apply. 
It is evident, therefore, that there may be many defenses 
against the enforcement of municipal ordinances which 
would not be available against an act of the Legislature. . No 
court would have the right or the power to set aside a statute 
because that court regarded the particular statute as unrea- 
sonable. But though the Legislature may and does delegate 
a portion of its law-making function to these subordinate 
governmental agencies, it does not delegate to them its sov- 
ereign power. 

MUNICIPAL. CONTRACTS. 

One of the chief practical distinctions between such 
bodies politic as are also bodies corporate and such as are 
mere state agencies, like counties and school districts, lies in 
the power to contract and the power to sue and be sued. The 
legal remedies for wrongs against political bodies that are not 
incorporated are difficult and technical and, unless a way is 
provided by statute they cannot, in some jurisdictions, be 



410 Public Cobpqbations. 

sued at all. Municipal corporations may make such contracts 
as are usual, fit and proper and calculated to carry into effect 
the purposes for which they are created. Such contracts 
must be executed in the form and by the officers by statute 
appointed, but the contract, once legally made, is just as 
binding upon the public corporation as it would be upon a 
private corporation. The Legislature could not even be per- 
mitted so to change the boundaries of the corporation as to 
relieve a large portion of its territory of the burden of being 
taxed for the payment of the debt when it is once legally 
incurred. Mandamus lies to compel public officers to include 
in the tax levy sums sufficient to pay the contract debts of a 
public corporation, if no money is available from any other 
source for their payment; and if it is so available, a similar 
action would lie to compel the payment of the money on 
hand by the proper officer. On the other hand, the prop- 
erty of a public corporation cannot be directly sequestered 
for the payment of debts, through legal process, as would be 
the property of a private corporation; nor is it liable to levy 
and sale upon execution. A judgment against such a cor- 
poration has to be collected by compelling the proper officers 
to pay it, or provide for its payment, in the proper way. 

. MUNICIPAL SECURITIES. 

There are various kinds of municipal securities, negotia- 
ble and otherwise. Cities are usually empowered to issue 
their notes, in order that ready money may be secured, where 
taxes have not been fully collected or are not quite due. 
These must be executed by the proper legal authority to have 
any validity in their inception. Municipal and county war- 
rants are orders, drawn by a proper officer on the treasurer, 
directing him to pay the person named, or bearer ; and if the 
warrant is regular and fair on its face and has been issued in 
the prescribed form and by the proper officer, acting upon 
the proper authority, the treasurer has no option, but must 
pay out the money, if he has it in his possession. Municipal 



Public Corporations, 411 

and county bonds are negotiable securities, designed for sale 
upon the market and to pass from hand to hand. They must 
be issued under express authority from the Legislature, and 
the legislative directions concerning them must be strictly 
followed. Investors in such bonds must see to it that this 
has been done and must, furthermore, be careful to ascer- 
tain whether any limit of indebtedness which a municipality 
may contract, as fixed by the Constitution of the state, has not 
been exceeded in the bond issue. While, if regular and valid, 
they are among the best and safest kinds of securities, bonds 
which have not been issued in compliance with the statute or 
which are authorized in defiance of constitutional limitation, 
are seldom worth more than the paper on which they are 
written, no matter how regular and imposing may be their 
appearance. Furthermore, the purchaser of such a bond, 
no matter how ignorant he may be of the circumstances 
under which it was issued, cannot claim to be a bona fide 
holder, for value, if the bond was, in its inception, void. 

PROPERTY OF PUBLIC CORPORATIONS. 

Public corporations have implied power to own and con- 
trol such property as is necessary to the proper prosecution 
of the purposes for which they are created. The power is 
usually expressly conferred by statute; and, where thus con- 
ferred, any restrictions or limitations upon it must be strictly 
followed. If any large indebtedness is to be incurred in 
order that the property may be acquired, it is usually neces- 
sary that the power to incur it be secured through an ena- 
bling act from the Legislature. Such corporations may also 
acquire property for particular purposes by means of grant, 
bequest, or devise. If, for any reason, the uses for which the 
real estate is held cease to become public, for instance, if a 
school site be abandoned for one more favorably located, the 
public corporation has implied incidental power to sell the 
property; but such sales are usually restricted in the charter; 
and charter restrictions must be followed to make the sale 



412 Public Corporations. 

valid. Ordinarily a municipal corporation has the power to 
mortgage property for a debt lawfully due it, or to become 
either a landlord or a tenant, as the emergencies of the case 
may require. If the corporation legally enter into the rela- 
tions of landlord, tenant, mortgagor or mortgagee, it has 
the same status, under the law, that any private person or 
corporation would have, until it comes to the point of collect- 
ing a judgment against it. 

MUNICIPAL OFFICERS. 

The manner of appointing such officers and many of their 
liabilities and duties is considered in the chapter on "Pub- 
lic Officers." They hold a trust relation to the constituency 
which they represent, and have no right to be directly or 
indirectly interested in any contract or other transaction 
with the municipality. 

LETTING OF CONTRACTS. 

The statutes frequently provide that all important con- 
tracts must be let by advertisement to the lowest responsible 
bidder, and litigation frequently arises over efforts to evade 
such provisions. Municipal franchises have rapidly been 
coming to be recognized as property; and the requirement 
that they be let to the highest bidder is inserted in many 
modern amendments to municipal charters. When contracts 
are let by advertisement and sealed proposals, the right to 
reject any and all bids is usually reserved and a maximum 
limit is usually fixed above which no bids will be accepted. 
The bidding must be fair and open, and any collusion between 
the bidders which could be proved would be sufficient ground 
for setting the contract aside. The trouble is that such 
agreements are usually very difficult of proof, and agree- 
ments among bidders for public work, for their mutual pro- 
tection and profit, are all too frequent. 



CHAPTEE XLIY. 
COURTS OF LAW. 

Kinds of Courts — Kinds of Jurisdiction — Actions at Law — The Plead- 
ings — Trials — State Writs — Costs — Judgment — Executions — Proceed- 
ings Supplementary to Execution — Garnishment and Trustee Pro- 
cesses. 

When a dispute has so far progressed that it becomes a 
matter of litigation, there is very little that the ordinary man 
needs to know, unless he undertakes to try his own case. It 
is distinctively and exclusively the lawyer's business; and 
quite beyond the province of this work, which is addressed 
to men who are not lawyers. Some sort of familiarity with 
what courts are and what powers they possess is, on the other 
hand, a part of every man's education; and a brief summary 
of some of the features of common law and equitable juris- 
diction is not out of place. 

KINDS OF COURTS. 

Every political division of the union has its judicial as 
well as its legislative and executive functions. The national 
government has courts which are held throughout the coun- 
try, to pass upon questions arising in matters of national juris- 
diction and between the different states and their citizens. 
It is not the importance of the case that gives the national 
courts jurisdiction, so much as the particular character of the 
case itself. A dispute over customs duties, however small, 
would have to be tried in the United States court, of the dis- 
trict in which it arose; and an offense against the postal laws 
could not be tried in the criminal courts of *the state. It 
often happens that the question of jurisdiction is the most 
important that will be raised in a suit in the national courts. 
Of course, every state in the union has its own system of 
courts, as prescribed by its Constitution and statutes; and, 
though the decisions of the courts of other states and of the 

413 



414 Courts of Law. 

United States are listened to with respect, as having an 
important bearing on a question in point, their reasoning is 
of no binding force in any other jurisdiction. It frequently 
happens that a case, arising in one state, might have been 
decided quite differently had it arisen in another. Each 
county has its courts, limited in jurisdiction by statute, and 
seldom taking cognizance of cases involving large sums of 
money; but within the limitations as prescribed, exercising 
full judicial powers. In addition to all these, every city has 
its municipal courts, and every village its justices of the 
peace. The justices' courts seldom have power to try cases 
which involve property of more than $200, and, if the 
amount involved is more than $50, there usually may be a 
re-trial of the whole case before the county court, on appeal. 

KINDS OP JURISDICTION. 

Of course there is a distinct line drawn between the civil 
and criminal jurisdiction of the various courts. In many 
both civil and criminal cases may be tried; but even then, the 
trials are at different terms and the two classes of cases are 
kept entirely distinct. The justices' courts have jurisdiction 
over only such criminal offenses as are petty in their charac- 
ter, amounting only to misdemeanors, or offenses against 
ordinances. If it so happen that a person accused of a higher 
crime is brought before the justice, all he can do is to take 
evidence to determine whether there is any probable cause 
of guilt; and if there be, hold the accused, under bail, to 
await the action of the grand jury. Trials for serious 
offenses, amounting to felonies, can be had only after indict- 
ment, by the grand jury, which specifies the crime and makes 
the charge against the defendant on behalf of the people. 

Courts are also divided into those of common law, and 
equitable jurisdiction. Equitable actions are usually con- 
fined to the state and national courts, though some county 
courts are, by statute, vested with limited equitable powers. 
In an action at law the relief demanded is usually damages 



Courts of Law. 415 

in money for some wrong or breach of contract. If the 
nature of the case be such that the money damages will not 
give adequate relief, the litigant must seek a court of equity 
for remedy; and, as a preliminary to that class of relief, he 
must be able to show to the satisfaction of the court that he 
has no adequate remedy at law. The consideration of such 
cases as are within the jurisdiction of courts of equity is 
undertaken in another chapter. In addition to these two 
classes of courts, most of the states have courts of probate 
for the proof of wills, and the administration of estates. Over 
all these courts of varying jurisdiction there are courts of 
appeal, for the correction of errors, and the preservation of 
uniformity in the administration of the law. "Without them 
each court would be a law unto itself, and each judge would 
have a power practically arbitrary. Every judge understands 
that, if he fails to decide a case in accordance with the rules 
of law, the error which he commits will cause a reversal of 
his decision, on appeal. The minutes of all proceedings in 
all courts except those of justices of the peace and police 
courts are generally preserved by stenographers; and, if 
wanted, are transcribed in typewritten form and printed for 
the inspection of courts of appellate jurisdiction. While 
this aids in the prevention of injustice, it adds greatly to 
the cost of legal proceedings. The transcription and printing 
of a case on a long trial sometimes costs nearly as much as 
the actual amount involved in the dispute. On the other 
hand, the expense attending appeals tends to shorten litiga- 
tion and prevent all but the most important cases from ever 
reaching the upper courts. All this works well enough in 
civil cases, but in criminal matters, only the wealthy evil 
doers can secure the advantage of having their cases passed 
upon by the higher courts. 

ACTIONS AT LAW. 

Every civil lawsuit of whatever character is commenced 
by the service of a summons upon the opposing party, on 



416 Courts of Law. 

behalf of the plaintiff. In justices' courts it is issued under 
the seal of the court and is generally returnable in about six 
days. The opportunity thus afforded for a speedy trial in all 
matters of minor importance is one of the chief advantages 
of these petty courts over the more important tribunals. The 
summons in the state, county and national courts, sometimes 
called a subpoena, but always amounting to the same thing, 
generally provides that the person served therewith must 
serve his answer on the plaintiff's attorney within twenty 
days from the day of service or, in case of his failure to do 
so, judgment will be taken against him by default, for the 
relief demanded in the complaint. If any reader should 
receive a paper of this character he should at once take it 
to his attorney and have the matter attended to without 
delay. In actions at law the summons is always issued upon 
a claim for money damages which is set forth in a complaint ; 
and this may or may not be served at the same time as the 
summons. The summons must be delivered personally; and, 
unless it is so delivered, the action is not started. If the 
defendant cannot be found, has left the state, is insane, or 
the like, there are special provisions for the commencement 
of the action, which must be strictly complied with, in order 
that the court may have any jurisdiction of the defendant, 
or the subject matter of the action. 

THE PLEADINGS. 

The summons is generally accompanied by a complaint. 
If it is not, the person upon whom it is served may demand 
a copy of the complaint of the plaintiff's attorney; and it 
must then be furnished to him. The complaint, in former 
times, was a very technical matter. By the statutes, in most 
states, it now consists of the title of the action, stating in 
what court it is brought, and the names of the plaintiff and 
the defendant ; then follows a brief statement of the facts on 
which the claim for damages or redress is based, and con- 
cludes with a prayer for judgment, in the specified amount 



Coukts of Law. 417 

or for the relief sought, together with interest, if it be a case 
on contract, and the costs of the action. The answer may 
deny the facts alleged in the complaint; or it may admit 
them, or a portion of them, and allege others which would 
tend to offset them. Provisions are made for a reply by the 
plaintiff, if a reply be necessary, and a rejoinder by the 
defendant is permitted in some states. Usually the pleadings 
are confined to the complaint, the answer and the reply. The 
complaint is usually verified by the plaintiff, who makes oath 
that it is true. If the complaint is sworn to, the subsequent 
pleadings must be sworn to by the opposing party or parties. 

TRIALS. 

After the pleadings have been served, issue is said to be 
joined; and the case then waits for its turn on the calendar 
of the court. When it is reached, if it is an action at law, a 
jury of twelve men is drawn to pass upon the facts in the 
case, as they shall be presented to them by the witnesses on 
either side. The witnesses are brought into court by means 
of subpoenas which command them to appear; and they have 
no choice but to come, or suffer fine at the hands of the 
court, in case of refusal. The plaintiff's attorney has the 
right, at the opening of the case, to tell the jury briefly what 
the litigation is about and what he expects to show by his 
witnesses. When his proof is all in, the defendant's attorney 
may make a motion to the court to have the case dismissed 
on the plaintiff's evidence. When he makes this motion, he 
practically says to the court: "True, but what of it?" If, in 
the opinion of the judge presiding at the trial, the plaintiff 
has failed to make out a case, accepting all that his witnesses 
have said in the most favorable aspect, he dismisses the case 
without further parley. This is what is called a non-suit. If 
the plaintiff has failed to bring his facts within the principles 
of law which would entitle him to a verdict, there is no use 
in taking the time of the court in listening to what the 
defendant's witnesses have to say. If the judge refuse to 
grant a non-suit, the defendant's attorney addresses the jury 



418 Courts of Law. 

and tells them what he expects to prove. When his evidence 
is in, if the facts are practically without dispute, and the only 
serious question is one of law, the judge may take the deci- 
sion into his own hands, on the motion of either party, and 
decide the case without sending it to the jury. If there is 
any question of fact in dispute, he will refuse to do this and 
will submit the question to the jurors for their decision. If 
the case arrives at this stage, the attorney for the defendant 
first addresses the jury and explains to them the contention 
of the defendant. The plaintiff's lawyer has the last turn; 
and he makes an address, covering the facts from his point of 
view. The judge then expounds to the jurors the law as it 
is applicable to the case and instructs them what bearing the 
legal questions have upon the question of fact submitted to 
them. The jurors then retire and remain until they are all 
agreed upon the verdict. If they cannot all agree they so 
report ; and when it becomes evident that they cannot in any 
way arrive at an agreement they are discharged, and the case 
must be tried all over again. When the case involves a 
question of money damages, the tendency to save further liti- 
gation and effect a compromise often results in verdicts which 
do not wholly represent the most just conclusions, but they 
frequently effect practical justice. 

STATE WRITS. 

Aside from the ordinary actions for relief by way of 
money damages, there are various minor special proceedings 
of concern to lawyers only, and four peculiar remedies known 
in many states as "state writs." The writ of prohibition, for- 
merly much in use in England, whereby one court might 
prohibit proceedings in a lower court, is practically obsolete 
in this country. The writ of habeas corpus we have else- 
where considered; and, though coming to us from the most 
ancient times, it is to-day one of the commonest of proceedings 
and is still one of the great safeguards of liberty. The writ 
of mandamus is issued out of a common law court, directed 
to some public commission, board, or officer, for the purpose 



Courts of Law. 419 

of compelling that commission, board, or officer to do some 
act required by the law to be done by him or them ; and con- 
cerning the propriety of doing which they are not, by law, 
vested with any discretion. The writ of certiorari is used for 
the purpose of bringing before the courts, for review, the 
proceedings of public boards, commissioners, or officers who 
are vested with power to determine some fact, for the pur- 
pose of correcting errors in that determination. None of 
these proceedings are actions at law; but they are remedies 
for special grievances, usually of a more or less public char- 
acter, of which the courts of law have cognizance. It is not 
necessary for the layman to understand more than that the 
rights, which these remedies assure, exist. 

COSTS. 

Costs are a sum awarded the successful party in a litiga- 
tion with the notion that they will assist him in paying for 
the legal expenses of the lawsuit. They also include the 
expenses of the case, such as witness fees, filing and record- 
ing of papers, printing, and the like. They do not belong to 
the attorney, as is generally supposed, but, in the first 
instance, to the client. To be sure, the attorney almost 
always gets them; and it is the intention that they should 
form a part of his compensation; but they are not his, and 
cannot become his except through his client. The client may 
agree, beforehand, that the costs shall belong to the attorney; 
but the agreement is not executed until the costs have been 
paid and the attorney has included their amount in his bill 
against his client. 

JUDGMENT. 

The final result of all trials at law, where money damages 
are sought, and the plaintiff is successful, is a judgment, for 
the plaintiff and against the defendant, that the latter pay 
to the former a certain sum of money. This judgment is 
entered in the office of the county clerk; and, until satisfied, 
it remains for many years, the number being regulated by 



420 Courts of Law. 

statute, a lien upon any real estate the defendant may have 
within the county. A copy of the judgment may be sent to 
any other county, within the state, where the defendant has 
real estate, and become a like lien there, without any further 
formality than merely filing the transcript of the judgment. 
Whole volumes are written, for the use of lawyers, about 
judgments and the rights arising under them. 

EXECUTIONS. 

After the judgment is filed, an execution upon the judg- 
ment may be placed in the hands of the sheriff of the county, 
for collection. If he can find any personal property of the 
defendant within the county which is not by law exempt 
from levy and sale under execution, the sheriff must seize it 
and sell it at public auction, applying the proceeds of the 
sale, as far as they will go, to the payment of the judgment, 
and of his fees and expenses. If he can find no personal prop- 
erty, he may levy his execution against any real estate the 
judgment debtor may have, and sell that. There are certain 
classes of real estate, under the statutes of many states, 
which are exempt. The chief of these is what are known as 
homesteads. The statutes in some states provide that a man 
may secure his home to the use of his wife and family as 
against any future creditors, by filing certain papers and 
complying with specified conditions. Any one wishing to 
secure such a privilege should consult a lawyer about it. The 
exemptions of personal property from levy and sale under 
execution are considered in other chapters. In most cases 
they are confined to men with families, and do not extend to 
single men and unmarried women. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

If the sheriff can find nothing upon which to levy, either 
personal property or real estate, he must return a report to 
that effect and have it filed in the office of the county clerk. 
The creditor then may usually secure an order for the exam- 
ination of the debtor upon oath as to his property, and if any 



Courts of Law. 421 

be found upon such examination, methods are provided for 
reaching it. 

GARNISHMENT AND TRUSTEE PROCESSES. 

In more than half of the states there are provisions by 
which the wages of working people and persons on salary 
may be reached by proceedings under the name of "garnish- 
ment" and "trustee processes." Such statutes tend, on the 
one hand, to minimize the opportunities of the "dead beat," 
as he is popularly called; and, on the other, frequently result 
in sore distress and degradation to the families of poor 
debtors. In some of the states, the amount of the salary 
which may be reached in this way is so limited that such 
processes reach only the income of persons whose earnings 
are apparently large enough to be ample for all reasonable 
needs. 



CHAPTEE XLV. 
EVIDENCE. 

Four Short Rules — The Best Evidence — Circumstantial Evidence — A 
Remarkable Murder Case — Hearsay — Evidence Excluded for Pub- 
lic Policy — Children and Others as Witnesses — The Oath. 

The word evidence as it is used in law, includes all the 
means bj which any alleged matter of fact, the truth of 
which is submitted to investigation, is established or dis- 
proved. While the word evidence and the word proof are 
often used synonymously, the latter term is more correctly 
applied to the effect of the evidence, and not to the means 
by which the truth is established. Evidence is, of course, a 
matter with which lawyers are chiefly concerned, it always 
being necessary for them to understand its complex rules. 
The ordinary person who is not a lawyer, will never have 
occasion to use these lesser rules, and will be chiefly inter- 
ested in learning in a general way, what kind of testimony 
may be given on a trial, and what kind is excluded. 

POUR SHORT RULES. 

The best known of the American writers on the law of 
evidence is Greenleaf. In his treatise he stated four short 
rules as folloAvs: 

"The first of these is, that the evidence must correspond 
"with the allegations and be confined to the point in issue." 

"The second is, that it is sufficient if the substance, only, 
"of the issue be proved." 

"The third is, that the burden of proving a proposition, 
"or issue, lies on the party holding the affirmative." 

"The fourth is, that the best evidence of which the case 
"in its nature is susceptible must always be produced." 

Three of these rules, for the purposes of this book, may 
be disposed of very briefly; the first rule indicates that the 

422 



Evidence. 423 

evidence must show to the court those facts which are stated 
in the pleadings; as for example, in the summons and com- 
plaint, and that evidence as to matter which has not been 
pleaded, will not he received by the court. Some matters 
which apparently do not have close connection with the 
pleadings may, nevertheless, be proved by evidence. Thus, 
for example, in criminal actions the defendant is always 
allowed to prove that he is of good character, or speaking 
more accurately, that his reputation is good. After this evi- 
dence as to good character has been put in, the prosecution 
may introduce other evidence to show that the defendant's 
character is bad. Unless the defendant first puts in evidence 
as to his character, the prosecution may not show that the 
defendant's character is bad. The law often permits proof 
of acts which show motive or preparation. For instance, in a 
case in which A had been indicted and was on trial for the 
murder of his oldest daughter by drowning her, the court 
admitted evidence tending to prove that A caused the deaths 
of his wife and youngest daughter by drowning at about the 
same time, and also showing that he married another woman 
immediately afterwards, on the ground that this evidence 
tended to prove that his motive was, by putting his wife and 
children out of existence, to enable him to enter into the 
second marriage. The second rule indicates that every state- 
ment in the pleadings need not be proved, so long as the evi- 
dence shows those facts which are essential for making out a 
case or right of action. The third rule provides that any per- 
son who makes a statement must prove it; if, for example, 
one has claimed that a note was given to him by another per- 
son, he must prove that fact. In the same way, if a party 
wish to show that he was at a certain place at a certain time, 
that fact he must prove by his witnesses. It is sometimes 
true that a statement which is negative in form must be 
proven by the party who makes it ; thus, for example, if, as 
a part of his case, a party made the assertion that he had not 
gone down town on a certain morning, the burden of proof 



424 Evidence. 

as to that fact would be on the one who had made the state- 
ment thus denied. 

THE BEST EVIDENCE. 

The most important of all the rules is probably the fourth, 
that the best evidence of which, the case in its nature is sus- 
ceptible must always be produced. Under this general rule, 
we may look at several subdivisions, circumstantial evidence, 
hearsay evidence, and primary evidence. 

CIRCUMSTANTIAL EVIDENCE. 

It will be noted that the rule referred to does not always 
require the best evidence; which would ordinarily be 
the testimony of a person who had seen the act, or a 
document executed by the party to be charged; but the 
requirement is only for the best evidence of which the case 
in its nature is susceptible. It is a familiar fact that the most 
important cases are not infrequently determined on what is 
known to the law as circumstantial evidence. This is espe- 
cially true in the case of the greater crimes which are fre- 
quently committed in secret. If a witness testify that he saw 
A inflict a mortal wound on B, of which B instantly died, this 
is a case of direct evidence, and, if the witness be given the 
credit to which, men are generally entitled, the crime is sat- 
isfactorily proved. If a witness were to testify that a person 
was shot with a pistol, and the wadding is found to be part 
of a letter addressed to the prisoner, the residue of which is 
discovered in the prisoner's pocket, we have a strong case of 
circumstantial evidence; and from these facts, if unexplained 
by the prisoner, the jury might or might not infer or presume 
his guilt. Some cases of circumstantial evidence are so strong 
as to be almost conclusive. Some years ago the writer read 
of a burglary in France. It appeared upon examination of 
the building entered that while the burglar was making his 
escape, his finger had been caught by a falling window sash and 
a portion of the finger nail had been torn from the finger. The 
next day one of the clerks employed in the store appeared 
with a bandaged hand, and on removing the bandage it wa^ 



Evidence. 425 

discovered that the torn piece of nail with all its serrations 
fitted precisely into the injured nail on the clerk's hand. 
There were other facts tending to connect the young man 
with the burglary. This evidence seems to prove almost con- 
clusively that that clerk's finger had been caught and injured 
in that window, and yet one can readily see, in the doctrine 
of chances, it does not absolutely indicate that fact, and the 
circumstance falls far short of an absolute proof of the guilt 
of the clerk. It is told somewhere that there was supposed 
to be only one specimen of a particular ancient coin of great 
value, and that specimen was in the British museum at Lon- 
don. It seems there was, however, a second specimen, which 
was unknown to the world of collectors of coins, and the pos- 
sessor of this second specimen one day visited the British 
museum to examine the one which was kept there; the coin 
in some way rolled from its place while this man was the only 
visitor in the room, and the loss being discovered a few 
moments later, he was seized and searched and the duplicate 
coin was found in his pocket. Here again was a case of strong 
circumstantial evidence, which, however, fortunately could 
be easily explained. ~No man can be hanged on one thread, 
but by weaving together many strands, a rope strong enough 
to hold him may be made, and to these threads the law likens 
circumstantial evidence. 

A REMARKABLE MURDER CASE. 

Of the many remarkable murder cases where convictions 
have been based upon circumstantial evidence, few are better 
known than that of the State of Massachusetts against John 
Webster. Webster was a professor of chemistry in Harvard 
University, and he was placed on trial for the murder of Dr. 
George Parkman. Both Webster and Parkman were well 
known in Boston, and the case attracted unusual attention. 
Some of the evidence introduced by the prosecution is indi- 
cated in the case in this manner: 

"The government introduced evidence that Dr. George 
"Parkman, quite peculiar in person and manners, and very 



426 Evidence. 

"well known to most persons in the city of Boston, left his 
"home in Walnut street in Boston in the forenoon of the 
"23d of November, 1849, in good health and spirits; and that 
"he was traced through various streets of the city until about 
"a quarter before two o'clock of that day, when he was seen 
"going toward and about to enter the medical college; that 
"he did not return to his home; that on the next day a very 
"active, particular, and extended search was commenced in 
"Boston and the neighboring towns and cities, and continued 
"until the 30th of November; and that large rewards were 
"offered for information about Dr. Parkman; that on the 30th 
"of November, certain parts of a human body were dis- 
covered, in and about the defendant's laboratory in the 
"medical college ; and a great number of fragments of human 
"bones and certain blocks of mineral teeth, imbedded in slag 
"and cinders, together with small quantities of gold, which 
"had been melted, were found in an assay furnace of the lab- 
oratory; that, in consequence of some of these discoveries, 
"the defendant was arrested on the evening of the 30th of 
"November; that the parts of a human body so found resem- 
"bled in every respect the corresponding portions of the body 
"of Dr. Parkman, and that among them all there were no 
"duplicate parts; and that they were not the remains of a 
"body which had been dissected; that the artificial teeth 
"found in the furnace were made for Dr. Parkman by a 
"dentist in Boston in 1846, and refitted to his mouth by the 
"same dentist a fortnight before his disappearance; that the 
"defendant was indebted to Dr. Parkman on certain notes, 
"and was pressed by him for payment; and that the defend- 
ant had said that on the 23d of November, about nine o'clock 
"in the morning, he left word at Dr. Parkman's house, that 
"if he would come to the medical college at half past one 
^o'clock on that day, he would pay him ; and that, as he said, 
"he accordingly had an interview with Dr. Parkman at half 
"past one o'clock on that day, at his laboratory in the medical 
"college; that the defendant then had no means of paying, 
"and that the notes were afterwards found in his possession.*' 
There was also some evidence to show that Webster, or 
some person in his behalf, had been writing letters to the city 
marshal of Boston, in which various suggestions were thrown 
out, calculated to divert suspicion from Webster. The evi- 
dence in the case was, of course, long, but it is probably sub- 



Evidence. 427 

stantially summed up in the quotation already cited, and 
upon these facts Webster was found guilty of the murder. 

HEARSAY. 

It is generally understood that hearsay evidence may not 
be given. A statement made by a person not called as a wit- 
ness, is hearsay. Sometimes hearsay is defined as evidence 
which does not rest solely on the credit of the witness, but 
depends in part on the veracity of another person. Thus, for 
example, if A be called to the stand and attempt to say that 
B told him such and such a thing, the court will refuse to 
receive the evidence on the ground that it is hearsay, and 
demand that B himself be brought in to testify. To these 
general principles there are a number of exceptions, some of 
which may be properly referred to here: If any person has 
overheard a party to the action make an admission which 
injuriously affects that party's pecuniary interest in the 
action, the person who overheard may relate to the court what 
the party said. In- a trial for homicide, a person who over- 
heard it, may repeat to the court a statement made by the 
person who has been killed, as to the cause of death, or cir- 
cumstances resulting in death, if it be shown that the 
deceased person who made the statement was in actual danger 
of death at the time and had given up all hope of recovery. 
An admission of guilt by a party to a criminal action is known 
as a confession, and, if overheard by another party, may be 
repeated to the court, if it be shown that it was made volun- 
tarily, that is to say, without threat against, or promise to, 
the defendant made by some person in authority and with 
reference to the prosecution. 

EVIDENCE EXCLUDED FOR PUBLIC POLICY. 

In most states it is the rule that a lawyer or physician will 
not be permitted to disclose on the witness stand information 
gained by him from the client or patient in the regular course 
of his professional duty. Upon this rule have been made in 
the course of time, many modifications, but it generally 
remains in substantially the form stated. It is also generally 



428 Evidence. 

extended to cover disclosures or confessions made to a clergy- 
man, which have been demanded by the discipline of the relig- 
ions body of which that clergyman is a member. In most 
states confidential commnnications between a husband and 
a wife may not be disclosed on the witness stand. 

CHILDREN AND OTHERS AS WITNESSES. 

The testimony of a child will ordinarily be taken when- 
ever it can be made to appear that the child understands the 
sanctity of an oath. Sometimes judges take the unsworn 
statements of young children. It will be seen that the credit 
of a child as a witness rests not so much on the age of the 
child as upon his particular ability and understanding. The 
blind and the deaf and dumb are proper witnesses as to any 
matter which may be communicated to them by their remain- 
ing senses. The old rule was that a person who was deaf, 
dumb, and blind, having no inlets of understanding, could not 
be a witness. Without doubt any court would to-day receive 
the testimony of Miss Helen Keller on any question of which 
she had personal knowledge. 

THE OATH. 

Courts generally administer an oath in taking testimony. 
Sometimes the witness is allowed to affirm instead of swear. 
Farther than this the court will generally endeavor to admin- 
ister that form of oath which will be most binding to the wit- 
ness on the stand. Some years ago an action was brought in 
this country by one Chinaman against another, and after 
inquiry the court caused one of the Chinamen, who was called 
as a witness, to take the oath which appeared to him to be 
most binding, that is to say, a rooster was brought into court, 
and the witness swore on dipping his fingers in the blood flow- 
ing from the freshly severed neck. 



CHAPTER XLYI. 
EQUITY. 

A Remedy for Every Right— The Equitable Maxims— Characteristics 
of Courts of Equity — Accident — Mistake — Fraud — Notice — Equit- 
able Conversion — Adjustment — Specific Performance — Injunction — 
Accountings. 

The word equity as used in law signifies not only fairness 
and natural justice, but it also indicates a great historical 
system of justice, which was for centuries administered in 
the high court of Chancery in England, and is now admin- 
istered in the corresponding courts in this country. The 
forms of action allowed in the courts of common law were 
frequently insufficient to meet the demands of suitors, as 
these common law courts entertained only actions in which 
the judgment sought was money, or the return of property. 
"No provision was made for actions for the re-execution of a 
lost instrument, to compel a man to perform specifically a 
contract which he had entered into; to secure relief against 
mistake or accident; to enjoin a threatened injury to prop- 
erty, or for any one of the scores of other actions which, since 
they seek some relief other than money or the return of prop- 
erty, are now brought in courts of equity. The suitors who 
were thus left without redress took their grievances to the 
king in person, and he, in the earlier days, dispensed a sort 
of rude justice from the throne. As the cares of state 
increased, these complaints were referred to a clerk or sec- 
retary, and the successors of this clerk in time came to be the 
Chancellors of England. 

A REMEDY FOR EVERT RIGHT. 

Equity having grown up in this somewhat informal man- 
ner, is based in large part upon certain maxims ; of these the 
most important, the pivot on which equity jurisprudence 

429 



430 Equity. 

swings, is that equity will permit no right to be without a 
remedy. The meaning is not merely that equity will inter- 
fere in a proper case where the courts of law give no relief, 
but also that equity will then make the relief complete. 
Thus, for example, equity will often grant an order directing 
the repression of the wrong complained of, and at the same 
time give damages for what has already been done. The 
maxim does not apply to mere matters of conscience; equity 
will not set aside a transaction simply because it does not 
stand the test applied by the most honorable men. Equity 
does not interfere where there is already a remedy at law, 
nor will it grant relief in direct contravention of a rule of the 
law, though the rule complained of may be harsh. It is noted, 
elsewhere, for example, that the principle of merger often 
works hardship, but against this rule, equity will not make her 
decrees. But from this maxim spring the great majority of 
equitable suits. A deed which should not be upon the record 
is cancelled by equity, because the law in such a case gives no 
relief. The reformation of a paper will be ordered for the 
same reason. A man who has agreed to sell to a purchaser 
a certain piece of land will be compelled by equity to make 
the deed of that land, because a similar deed would not be 
compelled in a court of law. Many transactions between a 
guardian and ward, or between a parent and child, which 
might pass muster in a court of law, will be disallowed by 
equity. 

THE EQUITABLE MAXIMS. 

The chief maxims of equity, to which reference is made 
in the last paragraph, are as follows: 

He who comes into equity must come with clean hands. 

He who seeks equity must do equity. 

Equity does not favor stale claims. 

In equal equities the law prevails. 

In equal equities priority of time prevails. 

Equality is equity. 

Equity acts specifically and not by way of damages. 



Equity. 431 

Equity acts in personam. 

Equity follows the law. 

Equity will permit no right to be without a remedy. 

Equity regards that as done which ought to be done. 

Equity imputes an intention to fulfill an obligation. 

Many of the questions arising from day to day in courts 
of equity are determined by a simple reference to one or 
more of these maxims. The maxim that he who comes into 
equity must come with clean hands, indicates that equity will 
not give relief to a suitor who has himself acted in an unjust 
manner. The maxim that he who seeks equity must do 
equity, expresses a somewhat similar idea. Stale claims are 
not favored by equity, and not infrequently a suit is dis- 
missed by a court of equity because the suitor has waited too 
long before asserting his right. The statement that where 
the equities between the parties are equal, the rule of the 
law or the earlier claim will prevail, needs no further expla- 
nation. That equality is equity is always recognized by the 
courts, and a division of property to be made by a court of 
equity is generally into equal shares. Equity ordinarily does 
not grant damages alone, though sometimes this is done as 
the best solution of the difficulty; more commonly the decree 
contains the direction for the specific performance of some 
act. Equity is said to act in personam, or against the person, 
because one who does not obey the decree of a court of 
equity may be punished by the court for contempt. This was 
illustrated by a case in which the English court of Chancery 
assumed jurisdiction of a celebrated dispute as to the bound- 
ary line between the colonies of Pennsylvania and Maryland. 
The action was brought by Penn, against Lord Baltimore, 
and was heard by the English court on the ground that its 
decree might be enforced by proceedings against Lord Balti- 
more, who lived in England. 

By the maxim, equity follows the law, is meant that ordi- 
nary legal rules are observed by equity as, for example, those 
relating to the distribution of the estates of decedents. 



432 Equity. 

Equity regards that as done that ought to be done and 
imputes an intention to fulfill an obligation. As a result of 
the principles stated in the last two maxims when a person 
is bound to do a thing, equity will often look upon that thing 
as done. For example, if a testator directed that certain 
moneys be invested in land, to be used for a certain purpose, 
from the time of the testator's death, equity would regard 
those moneys as land and apply to them the ordinary rules 
governing real property. This is known as the principle of 
equitable conversion. 

CHARACTERISTICS OF COURTS OF EQUITY. 

In an ordinary common law trial court, there is a judge 
and a jury of twelve men. In courts of equity there is no 
jury, the judge deciding all the questions. Occasionally, 
indeed, an equity judge calls upon a jury to give him advice 
as to questions of fact. He need not avail himself of th$ 
advice of the jury, however, unless he so choose, while a com- 
mon law judge is bound by the determination of his jury, so 
long as the verdict stands. Costs go to the victor in a common 
law court as a matter of right. In equity they are sometimes 
allowed by the court and sometimes refused. There are many 
differences in the two forms of practice which may not here 
be enumerated. 

In some states there are distinct courts of equity known as 
the courts of chancery. In other states the courts of common 
law and the courts of chancery have been combined, the judge 
sitting one week as a common law judge, with a jury, and the 
next week as an equitable judge, without a jury. Indeed, in 
those states where a combination of law and equity courts has 
been made, it sometimes happens that the judge who is called 
upon to try causes in a country district will act in one cause 
as a common law judge, with a jury, and in the next cause as 
an equity judge, without a jury. The cases, however, are 
kept entirely distinct, and an attorney in beginning an action 
must in every instance decide whether that action is to be 
brought in law or in equity. 



Equity. 433 

accident. 
An accident is defined as an unforeseen or injurious occur- 
rence not attributable to mistake, neglect or misconduct. 
Against many accidents equity will give relief, as, for exam- 
ple, in the case where a court of equity decrees the re-execu- 
tion of a lost deed which is necessary to make out a chain of 
title. 

MISTAKE. 

Mistakes are divided in law into mistakes of law against 
which a court will ordinarily not grant relief, and mistakes 
of fact in which relief may be had, where the mistake was 
mutual, material, and not induced by negligence. If I sell B 
a piece of land, and B believes there is oil on that land, 
though I know there is not, the mistake is merely on B's part 
and is not mutual. If, on the other hand, both B and I 
believe the land to be ordinary farming land and the day 
after the deed was recorded it was discovered to be rich in 
oil, it is possible a court of equity would grant relief. If C 
sign a deed without reading its contents, equity would prob- 
ably say a mistake flowing therefrom was induced by negli- 
gence. 

FRAUD. 

It is noticed in another chapter that to make out a cause 
of action for fraud we must establish certain fixed elements. 
Equity on the other hand will hold that many transactions 
are fraudulent which would not be so regarded in a court of 
common law. Where the relationship of the parties is such 
as to give one an undue advantage over the other, equity 
scrutinizes closely any bargain between them, and even more 
carefully a gift, as, for example, in the case of a guardian and 
ward. Equity will often find that third parties have been 
defrauded by a certain transaction and for that reason order 
the transaction set aside. Eor instance, conveyances made by 
insolvents to their wives are frequently set aside by equity, 
for the benefit of creditors. There is no reason why a solvent 



434 Equity. 

man may not convey his house and lot to his wife, and that 
conveyance will stand. If, however, the conveyance is made 
after he has become insolvent, or in contemplation of immi- 
nent insolvency, a court of equity may determine that the 
transfer was fraudulent and void in so far as creditors are 
concerned. 

NOTICE. 

The standing of a purchaser in a court of equity as against 
creditors of the seller is much affected by what the purchaser 
knew of the situation. Equity recognizes two forms of 
notice, actual and constructive. A good illustration of con- 
structive notice is that given by the recording of a deed or 
mortgage. Then whether subsequent purchasers of the land 
see that actual record or not, they are, nevertheless, affected 
with notice of the transaction. Though it appear that, as a 
matter of fact, the purchaser never heard of the prior deed 
or mortgage ; yet, if it be shown that that paper was on record 
at the time, the purchaser is bound by the notice thereby 
given. Actual notice, on the other hand, is knowledge of the 
circumstances, or it exists where the purchaser had knowledge 
of other related facts which must, in the eye of the law, have 
given him notice. 

EQUITABLE CONVERSION. 

We have already referred to the peculiar doctrine of 
equity, by which money is sometimes treated as land, or vice 
versa. To effect such a conversion the language used to 
direct the conversion must be imperative and it must be for 
a purpose which does not fail. Thus, for example, where a 
testator directed that certain lands be sold and the proceeds 
used to pay his debts, and it appeared, on his death, that he 
had no debts, the conversion would not be made by the law, 
since the purpose here had failed. 

ADJUSTMENT. 

Under the various theories of adjustment, equity shows 
its desire to equalize burdens. If one surety pay off a debt, 



Equity. 435 

he will be entitled to recover an appropriate share from the 
other sureties, and, generally speaking, if one of the sureties 
be insolvent, a court of equity will take that fact into consid- 
eration. Suppose, for example, that A, B and C were sure- 
ties for a debt of $1,500, which A was obliged to pay, and 
that B was insolvent. A could probably collect from C, as 
the latter's share, $750. This is known as contribution. A 
person who is secondarily liable on paying off an incumbrance 
is entitled to have the lien kept alive in his own favor; for 
example, A is surety on a note due from B; B has deposited 
collateral with the creditor; A, the surety, is obliged to pay 
the debt, and on so doing he may demand the collateral from 
the creditor, and enforce it against the debtor B; this is 
known as subrogation. It is generally held that a person 
asking to be subrogated to a lien must have paid off the whole 
debt and must have paid under a duty so to do. 

SPECIFIC PERFORMANCE. 

If a man bargain for a certain piece of land, it is evident 
that he cannot have in damages entire relief for a failure to 
convey that land, since it is not money he is seeking, but 
land, which he probably desires for a special purpose. Equity 
therefore would compel a conveyance of this land by way of 
specific performance. A person seeking specific performance 
must show that he has paid, or is willing to pay, a valuable 
consideration, which is not so inadequate as to shock the con- 
science of the court; the bargain must not be harsh or 
inequitable, and it must be definite, certain and enforceable; 
the obligation must be mutual. Where A, who was in pos- 
session of special information, bid off at a sale of the assets 
of a corporation, for about $100, stock which as a matter of 
fact was worth $27,000, the law refused specific performance, 
because the consideration shocked the conscience of the court. 
An infant cannot obtain specific performance of a contract 
into which he has entered, since he himself is not liable, and 
the obligation is not mutual. A court of equity would not 



436 Equity. 

grant a decree directing that an opera singer must sing in a 
certain opera house; in attempting to enforce such a decree 
a court of chancery might render itself ridiculous ; the court, 
however, might forbid the lady to sing in any theater save 
one mentioned. 

INJUNCTION. 

One of the broadest remedies in equity is the injunction. 
A permanent injunction may be granted at the end of an 
action, and a temporary injunction is often granted to last 
during the continuance of an action. Thus if a man com- 
menced to cut down the valuable trees of a householder, the 
latter could begin suit for an injunction, and, on the com- 
mencement of the action, obtain an order restraining mis- 
chief during its continuance. 

ACCOUNTINGS. 

Suits for accounting are brought in courts of equity. It 
is often held that one partner may not sue another in any 
way other than by demanding an accounting. When the 
court has once taken the matter in dispute in hand, it will 
generally see that full justice is done, and in a suit for an 
accounting a judgment for damages also may often be had. 



CHAPTEE XL VII. 

BANKRUPTCY. 

Control of the United States Government— Who May Become Bank- 
rupts — Involuntary Bankruptcy — Voluntary Bankruptcy — Part- 
nerships — Discharge in Bankruptcy — Administration of the Bank- 
rupt Estate — Proof of Claims — Division of the Estate — Preferences 
Under the Bankruptcy Act — Compositions — Discharges and Com- 
positions may be Revoked. 

Bankruptcy, in a legal sense, is something more than a 
mere state of insolvency. It is a process by which a man, 
who has become involved in debt so deeply that he cannot 
pay his obligations, may turn in all his property, have it 
applied to the payment of his debts, pro rata, as far as it will 
go, and then have his obligations "wiped off the slate," and 
take a new start in life, free and clear from all of his liabil- 
ities. This he may do voluntarily or, under certain circum- 
stances, a man engaged in ordinary business callings may be 
compelled to do it by his creditors. This is what is called 
"involuntary" bankruptcy. ~No one is, strictly speaking, a 
"bankrupt" until he has so been declared by a court of bank- 
ruptcy, either voluntarily or involuntarily. 

CONTROL OP THE UNITED STATES GOVERNMENT. 

Bankruptcy proceedings were borrowed from the English 
law; but under our Constitution the state governments have 
found an insurmountable obstacle to the enactment of bank- 
ruptcy laws which would enable any man to "get rid of his 
debts." "No state can pass any law which impairs the obliga- 
tion of contracts; and proceedings in bankruptcy not only 
impair them but often destroy them. Furthermore, debts 
may be owed without the state as well as within it. The 
United States government, on the other hand, is not 
restrained from passing laws which impair contract obliga- 

437 



438 Bankruptcy. 

tions; and Congress is expressly given the power by the Con- 
stitution to pass bankruptcy acts. Of this power, however, 
it does not always see fit to avail itself. Frequently the 
bankruptcy acts are repealed altogether; and for a long 
period of time the business of the country is done without 
them. The relations of debtor and creditor are meanwhile 
regulated by the varying state jurisdictions, and there is no 
way of getting rid of debts except by paying them. In the 
past it has been the experience that the business of the coun- 
try demands a bankruptcy act after a general period of com- 
mercial depression; and that when times have improved and 
the business of the country has re-adjusted itself, the bank- 
ruptcy acts become unpopular and are repealed. What the 
future may be it is, of course, impossible to predict; but at 
the present time the bankruptcy statutes are in force and 
there are many facts connected with them which it behooves 
the ordinary man to know, in order to protect his rights, as 
well as to take advantage, when necessary, of the opportuni- 
ties which the acts offer. One great advantage which the act 
affords is that it gives a law affecting commercial transac- 
tions, simple and uniform throughout the union. ~No matter 
what laws may prevail in the different states with regard to 
the payment and collection of debts, they are all subject to 
the provisions of the national bankruptcy acts. 

WHO MAT BECOME BANKRUPTS. 

Any person who owes debts, except a corporation, is enti- 
tled to the benefits of the act as a voluntary bankrupt. But 
while wage earners and persons engaged principally in farm- 
ing have this privilege, they are not subject to be compelled 
to go into bankruptcy involuntarily. On the other hand, 
they may participate with others in compelling business men, 
co-partnerships and business corporations to go into bank- 
ruptcy. It will thus be seen that a business corporation can- 
not avoid the payment of its obligations by becoming a vol- 
untary bankrupt, but may be put into involuntary bank- 



Bankeuptoy . 439 

ruptcy, while wage earners and farmers can become bank- 
rupts of their own choice, but not on compulsion. 

INVOLUNTARY BANKRUPTCY. 

In a general way it may be said that where an individual, 
firm or corporation, engaged in ordinary pursuits, becomes 
insolvent and has, within a period of four months, and while 
insolvent given a preference in any way to one creditor over 
another creditor, so that one creditor gets his debt paid and 
another does not, he or it may be declared bankrupt upon 
the petition to the bankruptcy court of the injured creditors, 
at least three in number, and having claims amounting to 
$1,000, in case of a corporation, and $500 in other cases. The 
giving of the preference above referred to is called an "act 
of bankruptcy;" and there are various technical rules and 
regulations relating thereto. To the average business man 
the most important point is the time limit. If he learns that 
a debtor whom he believes to be insolvent has given some one 
a preference which may defeat his claim, he must act in the 
matter within four months, if he expects relief in the bank- 
ruptcy courts. On the other hand, no security he may him- 
self receive for a debt due him by a person who is at the 
time insolvent, is safe until the four months have elapsed. 
This fact, as well as the liability to have any claim against 
one of doubtful credit discharged in bankruptcy, makes 
greater caution necessary in giving credit and taking security 
for debts, than was required in ordinary business dealings 
before the recent bankruptcy act was passed. After the 
debtor has once been declared a bankrupt in involuntary pro- 
ceedings, the progress of the case follows much the same 
lines as the proceedings in voluntary bankruptcy, which are 
to be described. 

VOLUNTARY BANKRUPTCY. 

This proceeding is commenced on the part of the bank- 
rupt by a petition to the bankruptcy court, located in the 
district where he resides, for a judgment declaring him a 



440 Bankruptcy. 

"bankrupt. This declaration follows as a matter of course; 
and the matter is then sent to the referee in bankruptcy, 
residing nearest to the residence of the bankrupt. The peti- 
tion must be accompanied by a statement of all the bank- 
rupt's debts and assets in detail; for he must be prepared to 
turn over all of his property, except such as is exempt from 
levy and sale on execution, in the state where he resides, 
under the state statutes. This property is preserved to him 
by the bankruptcy act. Its amount varies with the different 
states but it is seldom more than his weekly wages for a cer- 
tain period, his household furniture up to a small amount in 
value, and the tools of his trade or calling, in value up to an 
equally small amount. A meeting of the creditors, men- 
tioned in the list furnished by the bankrupt, is called and he 
must attend this first meeting and answer any proper ques- 
tions under oath that may be put to him, as to his property. 
The creditors then elect a trustee to care for their interests 
in the bankrupt's estate, if he has any, and make the divi- 
dend among them in the proper proportion. To this trustee 
the bankrupt must turn over his property. The creditors 
must file with the court sworn proofs of their claims against 
the bankrupt^ and it is his duty to examine them, see if they 
are correct, and report the fact if they are not so. These 
duties are subject to the provision that the bankrupt shall not 
be obliged to attend a meeting of creditors more than one 
hundred and fifty miles from his place of residence and that 
his expenses must be paid when he has to attend court for 
examination or for the inspection of claims in any other place 
than his owe residence. 

PARTNERSHIPS. 

A co-partnership may be declared a bankrupt at any time 
before the final settlement of its affairs; and each of the 
co-partners may also be declared bankrupts at the same time. 
The trustee is required to keep separate accounts of the prop- 
erty of the co-partnership and of the property belonging to 



Bankruptcy. 441 

the individual members of the firm. The proceeds of the 
partnership property must be apportioned to the payment of 
the partnership debts, and those of the individual members 
of the firm to the payment of their individual debts, and the 
surplus, if any, from one fund must be added to the other. 
If only a portion of the members of the firm are adjudged 
bankrupts the affairs of the firm cannot be administered in 
the bankruptcy proceeding, except by consent, but must be 
closed up by the solvent co-partner. 

DISCHARGE IN BANKRUPTCY. 

At any time from a month to a year after his petition 
was filed, a bankrupt may apply to the court for a discharge 
from further attendance upon it and from all of his debts. 
Unless he has fraudulently concealed some of his property or 
so failed to keep books that his creditors have been unable to 
learn his true financial condition, this discharge follows as a 
matter of course, and the bankrupt can begin life over again. 
There are debts of a certain character, however, of which a 
man cannot rid himself in a bankruptcy court. These are : 

First — Taxes levied by the United States, the state, 
county, district, or municipality in which he resides. 

Second — Judgments in actions for frauds or obtaining 
money by false pretenses or false representations, or for wil- 
ful or malicious injuries to the person or property of another. 

Third — Debts which have not been duly scheduled in the 
bankruptcy proceedings in time for proof and allowance, with 
the name of the creditor, if known to the bankrupt; unless 
such creditor had actual notice or knowledge of the proceed- 
ings in bankruptcy. 

Fourth — Debts which were created by the bankrupt's 
fraud, embezzlement, misappropriation or defalcation while 
acting as an officer or in any fiduciary capacity. 

ADMINISTRATION OF THE BANKRUPT ESTATE. 

The bankrupt has ceased to worry. He has given up all 
he has and the world has no more claims on him. He may 



442 Bankruptcy. 

start afresh. But meanwhile the trustee of his estate is 
charged with the duty of reducing it to money and dividing 
it among the creditors. He must sell all of the real estate 
and personal property of every description and turn them 
into money, as rapidly as the best interests of the estate will 
permit. If the bankrupt had any property rights which it 
takes legal proceedings to determine, the trustee must bring 
them. He is under bonds for the faithful performance of his 
duties, and he must use due care and diligence in their execu- 
tion. If property has been fraudulently transferred or con- 
cealed by the bankrupt he must ferret it out. When he has 
accumulated a considerable portion of the estate he may 
declare a partial dividend, if there is a probability that it will 
take considerable further time to collect in all of the assets. 
This dividend must be apportioned among the claims proved 
before the referee. 

PROOF OF CLAIMS. 

Any person holding a claim against a bankrupt estate, 
and having knowledge of the bankruptcy proceedings, must 
file with the referee in bankruptcy, to whom the proceedings 
have been referred, an itemized statement of his account, 
"with an affidavit that it is just and true, and that there are 
no offsets or counter-claims to it. If the claim be of such a 
nature that the creditor is entitled to a preference under the 
bankruptcy statute, he must claim the preference when he 
files his proof. Any party in interest may file objections to 
the claim offered, or to the preference asked. In such event 
the claim and the right to preference must be proved by evi- 
dence much as in a suit against the bankrupt in a state court. 
"When the evidence is in, the referee admits the claim, or 
rejects it, as the case may be. 

DIVISION OF THE ESTATE. 

The general theory of the bankruptcy act is that all cred- 
itors are entitled to an equal share in the estate of an insol- 
vent debtor. It is the policy of the law to assist creditors to 



Bankruptcy. 443 

secure this right. From the time of the repeal of the bank- 
ruptcy law of 1867 to the enactment of the present statute, 
the insolvent laws of the several states were ineffective to 
prevent debtors paying some creditors in full and other cred- 
itors nothing. A large share of commercial litigation arose 
out of the quarrels between creditors in their endeavors to 
secure first place in the division of what spoils were left after 
a failure. Under the bankruptcy law, as we have seen, such 
preferences are illegal and are acts of bankruptcy. Prefer- 
ences paid within four months of the filing of the petition can 
be recovered in the bankruptcy proceedings, by the trustee, 
from the creditor who has received them. 

PREFERENCES UNDER THE BANKRUPTCY ACT. 

But the bankruptcy act has not done away with prefer- 
ences to prior payment among the creditors altogether. The 
act itself specifies certain claims which are entitled to be paid 
in full in the order named before the general creditors receive 
anything. These claims are: 

Taxes due and owing from the bankrupt to the United 
States, or any state, town, county or municipality. 

The expenses of administering the estate. 

Expenses of creditors in involuntary cases. 

Attorneys' fees as fixed by the court. 

Wages of workmen, clerks and servants not exceeding 
$300, earned within three months of the time of the com- 
mencement of the proceeding. 

Debts owing to any person having preference under the 
laws of the states or of the United States, other than the 
bankrupt law. 

After these preferred claims have been satisfied and dis- 
charged, any funds remaining in the hands of the trustee 
are to be divided equally among all of the creditors who have 
proved their claims. 

COMPOSITIONS. 

It frequently happens that the creditors of a bankrupt 
wish to avoid the expense of protracted bankruptcy proceed- 



444 Bankruptcy. 

ings, and when they have met to discuss the situation and 
have examined the bankrupt as to the state of his property, 
they are willing to accept so many cents on the dollar, in set- 
tlement of their claims. Such an arrangement may be of 
advantage to all parties. It may bring about a speedy termi- 
nation of the proceedings, give the creditors a dividend on 
their claims in ready cash and, at the same time, leave a little 
something to the bankrupt, out of the wreck, with which to 
start over again; a result sometimes of far greater advantage 
to his present creditors and former customers than his abso- 
lute ruin. The bankruptcy law provides for this situation. 
After the creditors have met and the bankrupt has been 
examined he may apply in writing for a composition with his 
creditors, upon terms stated, and accompany his application 
with the written consent of a majority of his creditors. This 
must be a majority both in number of claimants and in the 
amount of the total face value of the claims. Such an appli- 
cation may be granted by the court and the proposed compo- 
sition confirmed, if it is made to appear that it is for the best 
interests of the creditors; that the bankrupt has been free 
from any concealment or fraudulent transfer of property; 
and that the consents of the creditors have been obtained 
fairly, and not by any promises of special benefits and advant- 
ages, not shared in by all of the others. If such a composi- 
tion be confirmed, the bankrupt is discharged of his debts, in 
the same way as though his estate had been administered in 
the regular way. 

DISCHARGES AND COMPOSITIONS MAY BE REVOKED. 

If it is discovered within a reasonable time after a dis- 
charge in bankruptcy has been granted, or a composition with 
creditors confirmed, that fraud has been practiced by the con- 
cealment of property, or in any other way, the creditors 
injured thereby may apply to the court to have the discharge 
or composition revoked; and, if a good case is made out, the 
application will be granted. In such a case the bankruptcy 
proceedings will be resumed where they were dropped. 



CHAPTEE XLVIIL 
CRIMINAL LAW. 

Children and the Insane — Principals and Accessories — One Crime In- 
tended, Another Committed — Treason — Homicide — Excusable and 
Justihable Homicide — Statutory Changes in Homicide — Arson — 
Statutory Changes in the Crime of Arson — Burglary — Statutory 
Changes — Larceny — Embezzlement — Statutory Changes in Lar- 
ceny — Robbery — Forgery — Perjury — Bigamy — Seduction— Rape. 

A crime is an injury done to the state, as distinguished 
from an injury done to the individual, and always involves 
intent except in the case of a few statutory crimes. Many 
wrongs which are torts are also crimes. Thus, for example, 
an assault and battery may be the subject of a civil action 
and it may also be the basis of a proceeding before the crim- 
inal courts. Crimes are generally divided into felonies and 
misdemeanors. A felony is ordinarily such a crime as is pun- 
ished by imprisonment in a state prison, or by death, while 
all other crimes are misdemeanors. 

CHILDREN AND THE INSANE. 

It is a general rule that children under seven years of age 
are held by the state to be incapable of committing crimes. 
The rule of the old law was that between seven and fourteen 
years of age the presumption was that a child was incapable 
of committing a crime, and that unless it were made to appear 
to the court that the child had this capacity a conviction could 
not be secured. In some states the latter age has been 
reduced to twelve years. After twelve or fourteen years 
there is no presumption. 

One of the most frequent defenses to a criminal proceed- 
ing is that the defendant was insane at the time the crime 
was committed. It was long ago decided, however, that to 
establish this defense a certain form of mental weakness must 

445 



446 Criminal Law. 

be established. The judges are accordingly directed by the 
old decisions to inform juries in cases of this kind: First, 
that every man is presumed to be sane; and second, that to 
establish a defense on the ground of insanity it must be 
clearly proved that at the time of committing the act the 
party accused was laboring under such a defect of reason 
from disease of mind as not to know the nature and quality 
of the act he was doing, or if he did know it, that he did not 
know he was doing w T hat was wrong. This doctrine has been 
somewhat modified in different states, but in the main still 
holds true. 

PRINCIPALS AND ACCESSORIES. 

Those who take part in a crime are designated as princi- 
pals and accessories; those being actually present and assist- 
ing in the crime may be looked upon as principals, while 
those who, though absent at the time of the crime, procure, 
counsel, or command another to commit the wrong, or who 
after the crime has been committed, and with knowledge of 
that fact, receive or assist the felon, are accessories. In some 
states those who procure or counsel a crime, though not 
present when it is committed, are looked upon as principals. 
There is frequently some difference in the punishments of 
principals and accessories. In misdemeanors all connected 
therewith are principals. 

ONE CRIME INTENDED- ANOTHER COMMITTED. 

It is a rule of the law that where a person intends to com- 
mit one crime and in his attempt commits another he shall be 
liable. Out of this principle have grown some of the most 
peculiar cases of the law, and by reason of their general inter- 
est several of them are here briefly referred to, and are set 
forth in the following paragraphs, lettered from a to e 
inclusive : 

(a) The prisoner entered a public house where a servant 
maid, against whom he had a grievance, was holding a child 
four months old. The prisoner seized the maid by the hair 



Criminal Law. 447 

of the head and struck her. The maid screamed loudly, and 
the infant was so frightened that it became black in the face. 
Thereafter the child suffered from convulsions and was ail- 
ing until about six months later when it died. Verdict: "not 
guilty." 

(b) John and Mary Conde were indicted for the murder 
of William Conde, the own son of John Conde and stepson of 
Mary. The defendants were poor people, who nevertheless 
managed to provide food enough for all of their children 
except William. Witnesses testified that when the other 
children were fed William was given nothing, and that Wil- 
liam was kept standing hour after hour against the wall of the 
room. Death was apparently due to starvation and ill treat- 
ment. John Conde was discharged and Mary was found 
guilty of manslaughter. 

(c) Saunders and Archer planned that Saunders should 
give a poisoned apple to Saunders' wife. Saunders put the 
poison in the apple and handed it to his wife, who at the 
time was ill. The woman ate a little and gave the remainder 
to their three year old daughter. Saunders was fond of the 
child, but did not offer to take the apple from her lest he 
should be suspected. The wife recovered and the daughter 
died from the effects of the poison. The court found that 
Saunders was guilty of murder. Archer, who according to 
the common law was an accessory before the fact, was set 
free. At the present time Archer would probably be con- 
victed also. 

(d) A man named Gore was ill. The physician wrote a 
prescription which was prepared by a druggist. When the 
prescription reached the house, Gore's wife secretly mixed 
ratsbane with the prescription, intending to poison her hus- 
band, and gave him a part of the mixture, and he upon eating 
of it became grievously ill. Agnes' father also tasted the 
prescription and he, too, became ill. Both he and Gore, how- 
ever, recovered. Thereupon the prescription was taken back 
to the physician, who sent for the druggist and questioned 



4:4:8 Criminal Law. 

the latter as to whether the prescription had been properly 
prepared. The druggist asserted that it had, and to prove 
his assertion took the box and with his knife mingled and 
stirred together the contents and ate part of it. The drug- 
gist died next clay. The question was whether Agnes was 
guilty of murder. Doubt arose because of the fact that the 
druggist not only ate of the poison of his own will but also 
so mixed and stirred the poison with the prescription that it 
made its operation more forcible than the mixture which 
Agnes had made; because those who ate of Agnes' mixture 
became ill, but survived. It was asked whether these cir- 
cumstances made the case different from Saunders' case. 
Verdict: "guilty." 

(e) Two sailors were indicted for the murder of a boy on 
the high seas. The three were in a boat and without food. 
The two sailors killed the boy and ate his flesh, and w T ere 
thereby enabled to survive until they were rescued. Their 
counsel cited an illustration from one of Lord Bacon's books 
to the effect that if a shipwrecked sailor reached out for a 
plank on which there was already one man, and the one in 
possession of the plank dislodged the newcomer, that would 
not be homicide in self-defense but would be justifiable. The 
English court, however, found that the sailors were guilty of 
murder, and they were convicted and sentenced to death. 
Public opinion in their behalf was so strong that their sen- 
tence was afterwards commuted to one of six months' impris- 
onment without hard labor. 

TREASON. 

Treason, the most uncommon of all crimes, is nevertheless 
one of the most important, being punished by the death pen- 
alty. Our expression, "high treason," is the outgrowth of the 
distinctions of the old law which recognized several kinds of 
treason. Blackstone says, "but when disloyalty so rears its 
crest as to attack even majesty itself, it is called high trea- 
son." In the United States the law recognizes not merely 



Cbiminal Law. 449 

treason against the general government, but also treason 
against the various state governments, though convictions 
for treason against the state are so rare as to be almost 
unheard of. It is a noteworthy fact that in most states the 
only crimes punishable by death are treason and murder. 
One hundred years ago no less than one hundred and sixty 
offenses had been declared by act of Parliament to be pun- 
ishable by death. A theft of property amounting to more 
than a shilling was then punishable as a capital offense. 

HOMICIDE. 

Murder, manslaughter, excusable homicide and justifiable 
homicide are all treated by the law under the general head 
of homicide. Murder is the unlawful killing of a human 
being with malice aforethought. The- presence of malice 
aforethought, or as the expression sometimes goes, malice 
prepense, is the criterion which distinguishes murder from 
other killing, and the malice referred to is not so properly 
spite or malevolence toward the deceased in particular, as it 
is an evil design in general. When with a deliberate mind 
and formed design one man kills another unlawfully, there 
is murder, and such facts as lying in wait, earlier threats, 
old grudges, and schemes to do the victim bodily harm are 
all evidence of this malice prepense. The commission of an 
act imminently dangerous to others, and evincing a depraved 
mind, regardless of human life, is also held to constitute mal- 
ice aforethought. The shooting of a pistol into a crowded 
theater, though without intending to aim at any particular 
person, would be such an act. A killing committed in the 
heat of passion and without opportunity of forethought is 
not murder, but manslaughter. 

A killing which is not accompanied by malice afore- 
thought and is neither excusable nor justifiable, is manslaugh- 
ter and is not punishable by death. Modern statutes have in 
many instances considerably broadened the crime of man- 
slaughter, by including therein such offenses as contributing 



450 Criminal Law. 

to a death by overloading a vessel, by the administering of 
a poisonous drag by an intoxicated physician, and by the 
negligent use of machinery. 

EXCUSABLE AND JUSTIFIABLE HOMICIDE. 

Where a criminal is executed by the proper public officer, 
and at the proper time and place, in the way directed by law, 
we have a case of justifiable homicide. Death occasionally 
results from accident or misfortune without blame to the per- 
son who has caused the fatality. Such homicides are said by 
the law to be excusable. The killing of another person in 
self defense is also classed by the common law as excusable 
homicide. Neither excusable homicide nor justifiable homi- 
cide is punishable. 

STATUTORY CHANGES IN HOMICIDE. 

The statutory changes in the law of homicide have been 
very considerable in many states. As an example, it may be 
pointed out that in "New York these innovations have been 
made: The distinguishing test between murder and man- 
slaughter lies not in the presence or absence of malice, but 
in the presence or absence of intent to kill; where there is 
malice but no intent to kill the crime is only manslaughter. 
In the same state the killing of another person in self defense 
is now made justifiable homicide, and extends to the defense 
of husband, wife, or child, or of the person in company of 
the one causing death. 

ARSON. 

Arson was originally the malicious and wilful burning of 
the house or outhouse of another man. This has always been 
considered an offense of great malignity, and from the ear- 
liest times has been severely punished. 

STATUTORY CHANGES IN THE CRIME OF ARSON. 

This crime has been greatly extended by legislation in 
this country, and now generally includes not only the burning 
of a dwelling house or outhouses, but also of such buildings 



Criminal Law. 451 

as stores, mills, churches, public buildings, and warehouses. 
Frequently the burning of crops, or of vessels, bridges, etc., 
is declared to be arson. The wilful burning of one's own 
house is also usually included in the modern statutes. In 
some states there is a division of the crime into degrees, and 
in fixing the degrees arson is usually considered more repre- 
hensible when committed at night, and when it affects the 
safety of a human being. 

BURGLARY. 

The old definition of a burglar was "he that by night 
breaketh and entereth into a mansion house with intent to 
commit a felony." Of the man who broke into a church it 
was said he had entered the mansion house of God, and so was 
a burglar. The old rule was that day turned into night at 
the point when there was not enough light left to discern a 
man's face. It has long been a rule that the breaking of the 
house need not be an actual forcing of the window; lifting 
the latch of the outer door is a sufficient breaking, as is the 
tearing down of a netting fastened to the outside of a win- 
dow. If a window be left half open it is not a breaking to 
push the sash higher, but the entrance of a house by a chim- 
ney is a breaking; the chimney must be open in every house. 
In the same way gaining an admission into a house by trick 
has been held to be burglary, as in cases where the thief 
assumed the uniform of a messenger for the purpose of gain- 
ing an admittance, or where he was admitted to the house by 
the collusion of a servant. 

STATUTORY CHANGES. 

By statute burglary has commonly been extended to 
cover the breaking and entering not merely of dwelling 
houses, but also of buildings, rooms, or parts of buildings, 
and the crime may now be committed by either day or night. 
This crime is frequently divided into degrees, the first degree 
usually relates to the entrance of a dwelling house in the 



452 Criminal Law. 

night time by a person who is armed or assisted by a confed- 
erate, or who commits an assault as part of the crime. 

LARCENY. 

Larceny is the taking away of the personal property of 
another with at the same time a trespass and an intent to 
steal. This definition was of considerable importance in the 
old days, because larceny of any amount over a few pennies 
constituted a felony, and might be punishable by death. 
There were many curious distinctions. If a thief seized a 
bale of goods and did not succeed in moving every part of the 
bale, then there was only a trespass for which he was not 
liable. If he moved every part of the bale for only a hair's 
breadth, it was larceny, and he might swing for it. Larceny 
formerly had to do only with personal property, and the rule 
still holds good in some localities. Thus the picking of apples 
from a tree could not be larceny, but stealing them from the 
ground on which they lay would constitute that offense. 

EMBEZZLEMENT. 

In many states the old rule is still observed and it is not 
larceny for a servant or clerk to misappropriate the personal 
property which he has received from a third person for deliv- 
ery to his employer ; such a wrongful act was known as embez- 
zlement. This form of misappropriation has frequently been 
made equivalent to stealing, by the statute. A like offense, 
the wrongful making away with goods by a person to whom 
they had been loaned or with whom they had been pledged, 
was held not to be larceny, because here there was no tres- 
pass. Such breaches of trust are now commonly covered by 
the same statutes which make embezzlement a crime. 

STATUTORY CHANGES IN LARCENY. 

The tendency of modern statutes is to include under the 
crime of larceny or under the crimes of larceny and embez- 
zlement, not merely the ordinary cases of stealing, but also 
the obtaining of money or property by false pretenses, 
breaches of trust resulting in the appropriation of the prop- 



Criminal Law. 453 

erty, and the taking by a servant or clerk of money or prop- 
erty belonging to bis master. The division of larceny into 
grand larceny and petit larceny is retained, and grand lar- 
ceny is often divided into degrees in which the more severe 
punishments are provided for taking property from the per- 
son or dwelling, or for the taking of large amounts of prop- 
erty. By modern statutes such interests in real property as 
are easily removable may also be the subject of larceny. 

ROBBERY. 

Eobbery is simply larceny from the person with an added 
element of force or fear. Taking property secretly does not 
constitute robbery. It is necessary that the theft be accom- 
plished with force either in overcoming the person robbed or 
in taking possession of the property, or that the person from 
whom the property is taken be intimidated. 

FORGERY. 

Forgery is the false making or altering of a writing with 
intent to deceive by its fictitious appearance of genuineness. 
Forgery, therefore, does not necessarily relate to the imita- 
tion of a name. To raise a check is just as much a forgery 
as it is to sign another person's name wrongfully to a check. 

PERJURY. 

Perjury is a corrupt attempt to pervert the administra- 
tion of justice. The crime may be based not merely on a false 
oath, but also upon a false statement made by a person who 
has elected to affirm rather than to be sworn. Subornation 
of perjury is the procuring of false swearing. It is usually 
provided that to prove the crime of perjury there must be 
something more than one witness; that is to say, two wit- 
nesses, or the testimony of one witness which is in some way 
corroborated. 

BIGAMY. 

A person who has a husband or wife living and marries 
another person is, generally speaking, guilty of bigamy. If 



454 Criminal Law. 

there has been a valid divorce, there is evidently no bigamy, 
because the one marrying for the second time, in law has no 
husband or wife living. It is frequently provided by statute 
that if the first husband or wife has been absent and unheard 
of for a considerable period and is believed to be dead, a sec- 
ond marriage may be contracted without constituting big- 
amy. A person whose former husband or wife has been 
sentenced to imprisonment for life is generally allowed to 
remarry. The law against bigamy is frequently violated by 
those w T ho avail themselves of the confusion existing in the 
laws of the several states as to what marriages and divorces 
are valid. 

SEDUCTION. 

Seduction under promise of marriage is made a crime in 
some states. When not accompanied by such a promise seduc- 
tion is not punishable as a crime. 

RAPE. 

A person who perpetrates an act of sexual intercourse 
with a woman not his wife against her will or without her 
consent, is guilty of rape. Such intercourse is held to be 
against the woman's will or without her consent when 
because of unsoundness of mind, or physical weakness, she 
does not resist; when her resistance is prevented by fear of 
immediate bodily harm, or by stupor of mind produced by 
intoxicants, narcotics, or any other cause. In most states, 
too, an age of consent has been fixed below which a woman 
is presumed to be incapable of agreeing to an act of sexual 
intercourse. Such an act with a girl under the age of con- 
sent is rape, though she make no objection thereto. The age 
of consent is sometimes as high as 18 years, and in other 
localities as low as 14 years. 



LEGAL FORMS. 



CONTRACT. 

This Agreement, made this first day of May, 1902, between 
John Reid, of the City of New York, party of the first part, and 
Henry Brown, of the same place, party of the second part, wit- 
nesseth, 

Whereas, the party of the first part desires to secure the services 
of the party of the second part as salesman in the store of the party 
of the first part, on Broadway, in the City of New York, for the term 
of one year from the date of this contract; and whereas the party of 
the second part is ready to accept such employment, it is agreed by 
the parties hereto, that the party of the first part will give employ- 
ment to the party of the second part for the term of one year from 
the date hereof, and will pay for the services rendered under this 
agreement by the party of the second part, the sum of one thousand 
dollars, of which sum five hundred dollars shall be payable the first 
day of November, 1902, and five hundred dollars shall be payable the 
30th day of April, 1903; it is further agreed in consideration of the 
premises, that the party of the second part will serve the party of 
the first part faithfully as a clerk in his store for the period of one 
year from the date of this contract. JOHN REID. 

HENRY BROWN. 

State of New York, 
City and County of New York, 

On this first day of May, 1902, before me, the subscriber, person- 
ally appeared, John Reid and Henry Brown, to me personally known, 
and known to me to be the same persons described in and who exe- 
cuted the foregoing instrument, and they and each of them acknowl- 
edged to me that they executed the same. 

HENRY GREEN, Notary Public. 



NOTE. 

$75.44. New York, N. Y., May 1st, 1902. 

One month after date I promise to pay to the order of John 
Roberts, seventy-five and 44-100 dollars, at the First National Bank of 
New York, value received, with interest. JAMES HENRY. 

455 



456 Legal Foems. 

BILL OF SALE. 

KNOW ALL, MEN BY THESE PRESENTS: 
That I, John Reid, of the City of Albany, State of New York, 
party of the first part, for and in consideration of the sum of twenty- 
eight dollars to me in hand paid at or before the delivery of this bill 
of sale by Henry Wright, of the same place, party of the second part, 
the receipt of which is hereby acknowledged, have sold, and by this 
bill of sale, do grant and convey to said party of the second part, his 
executors, administrators and assigns, all the following property. 



(Insert here a description of the property to be conveyed.) 



To have and to hold unto the said party of the second part, his 
executors, administrators and assigns forever; and that I do cov- 
enant to and with the said party of the second part that I am the 
owner of and have the right to sell the said property and will defend 
the same against any person or persons whatsoever. 

In Witness Whereof, I have hereunto set my hand and seal the 
first day of May, 1902. 

JOHN REID. (Seal) 



State of New York, 1 
County of Albany, I ss. 
City of Albany. 

On this first day of May, 1902, before me, the subscriber, person- 
ally appeared John Reid, to me personally known and known to me 
to be the same person described in and who executed the foregoing 
instrument, and he acknowledged to me that he executed the same. 



(Notary, Commissioner, or Justice of the Peace.) 



(Do not attempt to transfer the title to real estate by a bill of 
sale; a deed must be used for that purpose.) 



Legal Forms. 457 

POWER OF ATTORNEY. 

KNOW ALL MEN BY THESE PRESENTS, 



That I, 



have made, constituted and appointed, and by these presents do make, 

constitute and appoint my 

true and lawful attorney for me and in my name, place and stead to 
(insert here a description of the act to do which the power is given) 



giving and granting unto my said attorney full power and authority 
to do and perform all and every act and thing whatsoever requisite 
and to be done in and about the premises, as fully to all intents and 
purposes as I might or could do if personally present, with full power 
of substitution and revocation, hereby ratifying and confirming all 
that my said attorney or his substitute shall lawfully do or cause to 
be done by virtue thereof. 

In witness whereof, I have hereunto set my hand and seal the 
day of one thousand nine hundred and 

In the presence of (Seal) 



State of .. 
County of 
City of . . . 



Be it known, that on the day of 

one thousand nine hundred and before me 

personally appeared 

above named, who is to me personally known and known to me to be 
the same person described in and who executed the foregoing Power 
of Attorney, and he acknowledged the same to be his free act and 
deed. 

In testimony whereof, I have hereunto subscribed my name, the 
day and year last above written. 



(Notary, Commissioner, or Justice of the Peace.) 



458 Legal Fobms. 

FORM OF WILL. 

IN THE NAME OF GOD, AMEN. 

I, of the 

of in the County of 

and State of , being of sound mind 

and memory, do make, publish and declare this my last Will and 
Testament, in manner following-, that is to say: 

First — I direct that all my just debts and funeral expenses be paid. 

Second — I give and bequeath to 

Lastly, I hereby appoint 

execut of this, my last "Will and Testament: hereby revoking all 

former wills by me made. 

In Witness Whereof, I have hereunto subscribed my name the 

day of in the year of our Lord one 

thousand hundred 



We, whose names are hereto subscribed, Do Certify that 

the testator, subscribed name to this instrument in our presence 

and in the presence of each of us, and at the same time, in our pres- 
ence and hearing, declared the same to be last Will and Testa- 
ment, and requested us, and each of us, to sign our names thereto as 
witnesses to the execution thereof, which we hereby do in the pres- 
ence of the testator and of each other, on the day of the date of the 
said Will, and write opposite our names our respective places of 
residence. 

residing at 

residing at 

residing at 

(Three witnesses required in some states, two in others — have 
three to be safe.) 



SAMPLE WILL. 

WILL OF JOHN SMITH.— I, John Smith, of the City of Brooklyn, 
County of Kings and State of New York, do make, publish and 
declare this my last will and testament as follows: 

First, I give and bequeath to my niece, Mary Thomas, my piano. 

Second, I give and devise to my nephew, Louis Miner, the lot of 
land owned by me, which is situated on the south side of First 



Legal Forms. 459 

Street, in the City of New York, in the State of New York, purchased 
by me from James Groves, together with the buildings thereon. 

Third, I give, devise and bequeath to my wife, Emma Smith, the 
homestead property, together with the buildings thereon, situated on 
Second Street, in the City of Brooklyn, State of New York, together 
with all the furnishings of the same, the library therein contained, the 
glass, silver and china ware, all horses, carriages, sleighs and har- 
nesses which I may own at the time of my death, and all implements 
and tools of every description commonly used in and about the home- 
stead, reserving, however, from this gift, the piano already be- 
queathed by this will. I further give and bequeath to my wife, 
Emma Smith, ten thousand dollars ($10,000). The property covered 
by this paragraph in my will is given to my wife on the express 
understanding and condition that it shall be accepted by her in lieu 
of dower, and in lieu of any other right in my estate. 

Fourth, I direct that all property which I may have at the time 
of my death, of whatsoever kind or character, real or personal, not 
disposed of by the earlier clauses of this will, be divided into two 
equal parts. One of the said two equal parts I give, devise and be- 
queath to my son, Robert Smith. The other of the said two equal 
parts I give, devise and bequeath to my daughter, Jane Smith. 

I appoint my wife, Emma Smith, as executrix of this my last will 
and testament, and I direct that she shall not be required to give 
bonds for the faithful performance of her duties. 

In "Witness Whereof, I have hereunto subscribed my name and 
fixed my seal this 18th day of May, A. D. 1902. 

JOHN SMITH. (Seal) 



The foregoing will, contained on one sheet of paper, was sub- 
scribed at the end and sealed by John Smith, the testator named 
therein, in the presence of us and each of us; at the time of making 
such subscription the above instrument was declared by the said 
testator to be his last will and testament and then we and each of 
us at the request of the said testator, in his presence and in the 
presence of each other, did sign our names thereto at the end of the 
will. 

JOHN ROBINSON, residing at 41 West Street, New York City. 
HENRY GREENE, residing at 89 South Street, New York City. 
FRANK BROWN, residing at 29 North Street, New York City. 



460 Legal Fobms. 

DEED WITH FULL COVENANTS. 

(As Given by New York Statutes.) 

This indenture, made the day of 

in the year nineteen hundred and between 

of (insert residence) 

of the first part, and of (insert 

residence) of the second part. 

"Witnesseth, that the said party of the first part, in consideration 

of dollars, lawful money of 

the United States, paid by the party of the second part, doth hereby 
grant and release unto the said party of the second part, his heirs and 
assigns forever (here insert a description of the land conveyed"), 
together with the appurtenances and all the estate and rights of the 
party of the first part in and to said premises. 

To have and to hold the above granted premises unto the said 
party of the second part, his heirs and assigns forever. And the 
said party of the first part doth covenant with said party of the 
second part as follows: 

First. That the party of the first part is seized of said premises 
in fee simple, and has good right to convey the same. 

Second. That the party of the second part shall quietly enjoy 
the said premises. 

Third. That the said premises are free from encumbrances. 

Fourth. That the party of the first part will execute or procure 
any further necessary assurance of the title to said premises. 

Fifth. That the party of the first part will forever warrant the 
title to said premises. 

In witness whereof, the said party of the first part hath hereunto 
set his hand and seal the day and year first above written. 

In the presence of (Seal) 



State of New York, 'j 

County of I S s. 

City of J 

On this day of in the year 190.. 

before me, the subscriber, personally appeared 



to me personally known and known to me to be the same person 
described in and who executed the foregoing instrument, and he 
acknowledged to me that he executed the same. 



(Notary, Commissioner, or Justice of the Peace.) 



Legal Forms. 461 

EXECUTOR'S DEED. 

(As Given by New York Statute.) 

This indenture, made the day of 

nineteen hundred and between 

as executor of the last will and testament of 

late of , deceased, of the first part, and 

of the second part, witnesseth : 

That the said party of the first part, by virtue of the power and 
authority to him given in and by the said last will and testament, and 

in consideration of dollars, lawful 

money of the United States, paid by the said party of the second 
part, doth hereby grant and release unto the said party of the second 
part, his heirs and assigns forever (description of the premises con- 
veyed), together with the appurtenances, and also all the estate 
which the said testator had at the time of his decease in said prem- 
ises, and also the estate therein, which the said party of the first part 
has or has power to dispose of, whether individually, or by virtue of 
said will or otherwise. 

To have and to hold the above granted premises unto the said 
party of the second part, his heirs and assigns forever. 

And the said party of the first part covenants with said party of 
the second part that the party of the first part has not done or suf- 
fered anything whereby the said premises have been encumbered in 
any way whatever. 

In witness whereof the said party of the first part has hereunto 
set his hand and seal the day and year first above written. 



As executor of the last will and testa- 
ment of 

In presence of 



The executor's deed, the New York form for which is given 
above, may be used only where a power to convey real estate is 
given to an executor by the terms of the will. Without such a power 
in the will an executor has no authority to make a conveyance of real 
estate. An acknowledgement in the usual form should be added to 
the executor's deed. 



462 Legal Forms. 

LEASE. 

A LEASE made and executed between 

of the city of and 

state of of the first part, and 

of the city of 

and 

state of of the second part, 

this day of , in the 

year of our Lord one thousand nine hundred and 

In consideration of the rents and covenants hereinafter expressed, 
the said party of the first part has demised and leased, and does 

hereby demise and lease to the said party of the second part 

the following premises, viz: 



(Insert description) 

with the privileges and appurtenances for and during the term of 

from the ...day of 190 

which term will end . . , And the said party 

of the second part covenants that he will pay to the party of the first 

part, for the use of said premises, the rent of 

Dollars, ($ ), to be paid 

And provided, said party of the second part shall fail to pay said 

rent or any part thereof, when it becomes due 

it is agreed that said party of the first part may sue for the same, 
or re-enter said premises, or resort to any legal remedy. 



The party of the part agrees to pay all, 

taxes to be assessed on said premises during said term.. 



The party of the second part covenants that at the expiration of 
said term he will surrender up said premises to the party of the first 
part in as good condition as now, necessary wear and damage by the 
elements excepted 



Legal Forms. 4G3 

Witness the hands and seals of the said parties, the day and year 
first above written. 

(Seal) 

(Seal) 

This lease may be indorsed as follows: 

LEASE. 
MADE AND EXECUTED BETWEEN 



Landlord, 
and 



Tenant. 

Premises 

Begin© 190 . 

Expires 

Rental, per $ 

Payable 



MORTGAGE. 

(As Given by New York Statutes.) 

This indenture, made the day of , 

in the year nineteen hundred and between 

of , party of the first part, and 

of 

party of the second part. 

Whereas, the said is 

justly indebted to the said party of the second part in the sum of 

dollars, lawful money of the United States, 

secured to be paid by his certain bond or obligation, bearing even 
date herewith, conditioned for the payment of the said sum of 

dollars, on the day of 

nineteen hundred and , and the interest 

thereon, to be computed from 

at the rate of per centum per annum and to be paid 



464 Legal Forms. 

It being thereby expressly agreed that the whole of the said 
principal sum shall become dup after default in the payment of inter- 
est, taxes or assessments, as hereinafter provided. 

Now this indenture witnesseth, that the said party of the first 
part, for the better securing the payment of the said sum of money 
mentioned in the condition of the said bond or obligation, with inter- 
est thereon, and also for and in consideration of one dollar, paid by 
the said party of the second part, the receipt whereof is hereby 
acknowledged, doth hereby grant and release unto the said party of 
the second part, and to his heirs (or successors) and assigns forever 
(Here insert a description of the premises to be mortgaged), together 
with the appurtenances, and all the estate and rights of the party of 
the first part in and to said premises. 

To have and hold the above granted premises unto the said party 
of the second part, his heirs and assigns forever. 

Provided, always that if the said party of the first part, his heirs, 
executors or administrators, shall pay unto the said party of the 
second part, his executors, administrators or assigns, the said sum 
of money mentioned in the condition of the said bond or obligation, 
and the interest thereon, at the time and in the manner mentioned, in 
the said condition, that then these presents, and the estate hereby 
granted, shall cease, determine and be void. 

And the said party of the first part covenants with the party of 
the second part as follows: 

1. That the party of the first part will pay the indebtedness as 
hereinbefore provided, and if default be made in the payment of any 
part thereof, the party of the second part shall have power to sell the 
premises therein described according to law. 

2. That the party of the first part will keep the buildings on the 
said premises insured against loss by fire for the benefit of the mort- 
gagee. 

3. And it is hereby expressly agreed that the whole of said prin- 
cipal sum shall become due at the option of the said party of the 

second part after default in the payment of interest for 

days, or after default in the payment of any tax or assessment for 
days, after notice and demand. 

In Witness Whereof, the said party of the first part hath hereunto 
set his hand and seal, the day and year first above written. 

In presence of 



Legal Fokms. 465 

State of New York, ^ 

County of I sg> 

City of 

On this day of in the year 190 

before me, the subscriber, personally appeared 



to me personally known and known to me to be the same person 
described in and who executed the foregoing instrument, and he 
acknowledged to me that he executed the same. 



CHATTEL MORTGAGE. 

TO ALL TO WHOM THESE PRESENTS SHALL COME: Know 
ye, that I, John Reid, of the City of Albany and State of New York, 
am indebted unto Henry Green, of the same place, in the sum of two 
hundred dollars ($200), being for money loaned to me by the said 
Green on the day on which this chattel mortgage is executed. 

Now for securing the payment of the said debt, and the interest 
thereon from the date hereof, to the said Henry Green, I do hereby 

SELL, TRANSFER AND ASSIGN to the said Henry Green all 
the goods, chattels and property mentioned and described in the fol- 
lowing 

SCHEDULE, VIZ: 

My bay draught horse. This horse has three white feet and a 
star on his forehead and is now in my barn in the City of Albany. 

My red dray. 

My harness, used with my draught horse and dray. 

All of which property is now in my possession at Albany, New 
York. And I warrant that I am the true and lawful owner thereof 
and have the right to sell the same and that the same is free and 
clear from any and all liens, claims and incumbrances. 

PROVIDED ALWAYS, And this mortgage is on the express con- 
dition that if I, the said John Reid, shall pay to the said Henry 
Green the sum of two hundred dollars ($200) with interest thereon, 
one year from the date of this chattel mortgage, which sum and 
interest I hereby covenant and agree to pay in the manner above 
stated, then, on such payment, this transfer is to be void and of no 



466 Legal Forms. 

effect; but in case of the non-payment of the said debt and interest 
at the time above mentioned, then the said Henry Green shall have 
full power and authority to enter upon the premises of the party of 
the first part, or any other place or places where the goods and chat- 
tels aforesaid may be, and take possession of said property, to sell 
the same and the avails (after deducting- all expenses of the sale and 
of keeping of said property) to apply in payment of the above debt; 
and in case the said Henry Green, his representatives or assigns, 
shall at any time deem the said property, debt or the security 
afforded by this mortgage unsafe, it shall be lawful for him or said 
representatives or assigns to take possession of said property, and to 
sell the same at public or private sale, previous to the time above 
mentioned for the payment of said debt, applying the proceeds as 
aforesaid, after deducting all expenses of the sale and keeping of the 
said property. And the said mortgagee, his heirs, executors, adminis- 
trators or assigns, may purchase at any such sale, in the same man- 
ner and to the same effect as a person not interested herein. If 
from any cause said property shall fail to satisfy said debt, interest, 
costs and charges, I covenant and agree to pay the deficiency. 

In witness whereof I have hereunto set my hand and seal the 
first day of May, in the year of our Lord, 1902. 

JOHN REID. 



State of New York, \ 
County of Albany, I sg# 
City of Albany. J 

On this first day of May, 1902, before me, the subscriber, person- 
ally appeared John Reid, to me personally known and known to me to 
be the same person described in and who executed the foregoing 
instrument and he thereupon acknowledged to me that he executed 
the same. JAMES SMITH, 

Notary Public. 



INDEX. 

A Page 

Abatement of Nuisance 95 

Abridgements 153 

Access, Eight of 297 

Accessories to Crime 446 

Accident Insurance 213 

Accident, Eelief from in Equity 433 

Accommodation Paper 189 

Accord and Satisfaction 115 

Accountings in Equity 436 

Accounting of Guardians 32 

Accumulations of Water 301 

Act of God 123 

Actions at Law 415 

Acts of Congress 308 

Actual Notice 434 

Additions to Land 297 

Adjustment in Equity 434 

Administrator 104 

Administration of Bankrupt Estates 441 

Adopted Children 31 

Adulteration of Foods 336 

Adultery 42 

Ad Valorem Taxes 370 

Advances, Mortgages to Secure 251 

Agencies, Creation of 58 

Agencies, How Terminated 60 

Agents 57 

Agent's Contracts 65 

Agent's Erauds 65 

Agreements 98 

Air 91 

Aliens 308 

Alimony 41 

Ambassadors 312 

Amendments 319 

Animals, Property in 139 

Appeal from Decision of Chair 317 



ii Index. 

Page 

Appointment to Office 40.1 

Apportionment of Taxes 370 

Apprentices 27 

Approval of Statutes 322 

Arbitration 114 

Arms, Eight to Carry 333 

Arson 450 

Art 149 

Artificial Water Courses 301 

Assault 70 

Assignable Paper 180 

Assignment of Mortgage 250 

Attainder, Bill of . . . /. 325 

Attorney, Power of, Form 457 

B 

Baggage 127 

Bailor Defined 117 

Bailments 117 

Bailer Defined 117 

Ballots 394 

Ballot Systems 389 

Banks 195 

Bank Officers 198 

Banks of Kivers 297 

Bankruptcy 437 

Bankrupts 438 

Battery 70 

Bays ." 295 

Bed of Eivers 296 

Bees 140 

Bequest 276 

Bible in Schools 347 

Bicycles . . 292 

Bids for Municipal Contracts 412 

Bigamy 453 

Bills of Exchange 183 

Bills of Sale 132 

Bill of Sale, Form 456 

Bill of Eights 325 

Black Lists 341 

Blackstone 18 

Board of Children 26 



Index . iii 

Page 

Boards of Health 348 

Bona Fide Holders 182 

Bond and Mortgage 250 

Bonds 168, 175 

Bonds of Public Officers 403 

Bonds of Towns 410 

Books 151 

Boundaries 249 

Boycotts . , 339 

Brains, Property in 147 

Branding 141 

Breach of Contract 110 

Breach of Promise to Marry 36, 111 

Breweries 92 

Bridges 293, 299 

Building and Loan Associations 201 

Bulls 146 

Burglary 451 

Business Enterprises of the State 345 

Business, Forms of Doing 156 

Butter 336 

Buyer 131, 132 

By-Laws of Towns 408 

C 

Calling of Elections 391 

Canals 294 

Canal Ice 294 

Care in Bailments , 118 

Carriers' Contracts 125 

Cattle 141 

Cattle, Diseased 146 

Cattle on Highway 145 

Caveat Emptor 132 

Certified Checks 185 

Certiorari 376 

Certiorari, "Writ of 418 

Chairman of Meeting 317 

Charges d'affairs 312 

Charities, Gifts of 279 

Charters of Municipal Corporations 408 

Chattel Mortgage 130, 133 

Chattel Mortgage, Form of 465 



iv . Index. 

Page 

Chattel Mortgage of Crops 265 

Checks 178, 185 

Children 25 

Children as Witnesses 428 

Church Pews 222 

Church Societies 316 

Circumstantial Evidence 424 

Civil Law 17 

Civil Service Laws 401 

Claims in Bankruptcv 442 

Coin 195 

Collections by Banks -. 197 

Collection of Taxes 372 

Commerce 310 

Commercial Agency Reports 75 

Commercial Paper 179 

Commercial Trusts 167 

Commission Merchants 57 

Committees 320 

Committees of the "Whole 320 

Common Carriers 124 

Common Law 17 

Common Scold 88 

Composition of Matter 149 

Compositions with Creditors 443 

Condemnation of Water Rights 302 

Condemnation Proceedings , 361 

Congress 20 

Congress, Acts of 308 

Consideration 99 

Consideration for Guaranty 193 

Constitution of the United States 19 

Constitutionality of Statutes 314 

Constructive Eviction 258 

Constructive Notice 434 

Construction of Statutes 314 

Consuls 312 

Consular Officers 311 

Contract, P>reach of 110 

Contracts, Obligation of 327 

Contractors 55 

Contract Rights and Eminent Domain. . . , 354 

Contracts 97 



Index. v 

Page 

Contract, Form of 455 

Contracts, Letting of by Municipalities 412 

Contracts with Government 307 

Contributory Negligence 79 

Conveyances 246, 247 

Copyrights 151 

Corn 262 

Corporation '. 164 

Corporations 168 

Correction of Errors in Taxes 375 

Corrupt Practices 395 

Costs 419 

Co-Tenants . . . . 238 

Counties 406 

Coupon Bonds 176 

Courts of Equity 432 

Courts, Kinds of .... * 413 

Courts of Law 413 

Covenants in Deeds 247 

Crimes 67 

Crime, Servitude for 328 

Criminal Conversation 42 

Criminal Law 445 

Criminal Prosecutions 326 

Crops 220, 261, 262 

Crop Contracts 261 

Culverts 299 

Customs 20 

D 

Damages in Eminent Domain 359 

Damages, Measure of Ill 

Damages, Measure of in Warranty 136 

Dams . 298 

Death Caused by Negligence 82 

Death, Distribution of Property at 269 

Death of Partner ' 163 

Debate, Eules of 316 

Debts 97 

Debts of State 383 

Deceit 84 

Declaratory Statute 313 

Deeds 245 



vi Index. 

Page 

Deeds, Kinds of 247 

Deeds on Tax Sales 379 

Deed with Full Covenants, Form of 460 

De Facto Officers 404 

Defenses to ^Negotiable Paper 188 

Delegation of Duties 50 

Delivery of Deed 247 

Delivery of Goods 131 

Department of Interior 148 

Deposits ; 197 

Description of Property in Deeds 248 

Devise 276 

Diplomatic Officers 311 

Directory Statute : 314 

Direct Taxes 363 

Diseased Cattle 90 

Discharge of Bankruptcy 441 

Discharge of Mortgage 252 

Discontinuance of Highways 287 

Disinheriting a Child 30 

Dissolution of Loan Associations 205 

Distributees 216, 270 

Distribution of Property at Death 269 

Divorces 39 

Divorce, Effect of on Title to Real Estate 243 

Dogs 143 

Domestic Animals 141 

Domestic Use of Water 298 

Dower 230, 270 

Dower, Assignment of 231 

Dower, Barring of 232 

Drama 152 

Drifting Property 297 

Druggists 336 

Due Process of Law 330, 362 

Duties of Husband 41 

E 

Easements 281 

Easements in Water. . . 304 

Eavesdroppers 288 

Education 27, 346 

Education, Taxes for 369 



Index. vii 

Page 

Eggs 140 

Elections 387 

Election Officers 393 

Election to Office 401 

Electricity 148 

Electric Light Companies 351 

Embezzlement 452 

Embezzlement of Stock 172 

Eminent Domain 354 

Employees 44 

Employment, Scope of 52 

Endowment Policy, Insurance 208 

Engineers 336 

Enjoyments 36 

Entirety, Estates in 242 

Envoys' 312 

Equitable Conversion • 434 

Equitable Mortgages 252 

Equitable Maxims 430 

Equity 429 

Errors in Taxes, Correction of 375 

Errors in "Wills 275 

Escrows : 247 

Estates for Life 225, 229 

Estate for Years 255 

Estoppel 59 

Eviction 258 

Evidence 422 

Excise Laws 342 

Excusable Homicide 450 

Executions 420 

Executives 312 

Executive Powers 306 

Executor 104, 276 

Executor's Deed, Eorm of 461 

Explosives 90 

Ex Post Eacto Laws 325 

Extradition 309 

F 

Eactories 50 

Factors 66 

Ealse Imprisonment 71 



viii Index. 

Page 

Farmers Grange 316 

Farming on Shares 261 

Farm Products 239 

Federal Elections 387 

Federal Exercise of Police Power 343 

Fee 224 

Fee Simple 224 

Fellow Servants 48 

Ferry Franchises 295 

Feudal Tenures 18 

Fields 216 

Filibustering 320 

Finders, Rights of 119 

Fire, Damage by 259 

Fire Departments 349 

Fire Insurance 212 

Firms 158 

Fishing 297 

Fixtures 217 

Floods 302, 303 

Floor in Debate 317 

Food Adulteration 336 

Foreclosure, Loan Association Mortgages 204 

Foreclosure of Mortgage 253 

Foreign Commerce 310 

Foreign Corporations, Taxes on 311 

Forgery 453 

Form of Contract 99 

Forms 455 

Franchises, Municipal 351 

Fraternal Organizations 208 

Fraud 77 ? 84 

Fraud, Relief from in Equity 433 

Frauds, Statute of 103 

Freight Agents 63 

Fright of Animals 143 

Fruit 262 

Future Interests in Real Estate 234 

Future Profits in Damages 112 

Q 

Gambling Contracts 173 

Game Laws 140 



Index. ix 

Page 

Garnishment 421 

Gas Companies 351 

General Agents 57 

General Deposits 197 

•Gifts to Charities 279 

Glue Factories 93 

God, Act of 123 

Gold 195 

Government 306 

Government Contracts 307 

Grantee 246 

Grantor 246 

Grants 246 

Grasses 262 

Great Lakes 295 

Grocer 129 

Guaranty 191 

Guaranty, Statute of Frauds 193 

Guardians 32 

H 

Habeas Corpus 330 

Habeas Corpus in Case of Children 30 

Health, Boards of 348 

Hearsay Evidence 427 

Heirs .' 216, 270 

H;igh Seas 295 

Highway Commissioner 404 

Highways 285 

Highways by Prescription 286 

Highways by Statute 286 

Highways, Notice of Defects in 290 

Highways, Obstructions to 289, 291 

Home Rule for Cities 313 

Homestead Rights 420 

Homicide 449 

Horses 85, 141 

Hostelries 122 

Hotel Keepers 121 

Hours of Labor 338 

Houses 216 

Humane Societies 144 

Husband 34 



x Index. 

I Page 

Ice 220, 297 

Ice Cream Poisoning 113 

Illegitimate Children 32 

Implied Warranties 136 

Impounding 145 

Increase of Stock 174 

Indirect Taxes 363 

Indorsements 186 

Indorsements in Blank 186 

Indorsements "Without Recourse 186 

Infants 25 

Infringement of Copyright 153 

Inheritance Taxes 279 

Injunction 436 

Injury Done by Children 29 

Injury by Servants 48 

Inland Commerce 295 

Inn Keepers 121 

Insane, State Care of 334 

Insanity 334 

Insanity as a Defense to Crime ' 445 

Insolvency of Banks 198 

Insurance 20ii 

Insurable Interest 208 

Intent 22 

Intent in Crime 446 

Interest 114 

Inter-State Commerce 310 

Intestates 269 

Invention 147, 150 

Involuntary Bankruptcy 439 

Irrigation 299 

J 

Jewelry 122 

Joint Ownership in Lands 237 

Jointure 233 

Joint Stock Companies 165 

Joint Tenancies 237 

Journal of Legislature 323 

Judgments 419 

Judicial Officers 404 



Index. xi 

Page 

Judicial Powers 306 

Jurisdiction of Courts 414 

Jury Trials 417 

Justices' Courts 414 

Justifiable Homicide 450 

K 

Kin, Next of 216, 270 

L 

Labels, Imitation of 337 



Labor, Hours of 338 

Lakes 295 

Land 222, 248 

Land Covered by Water 24S 

Landlord 255, 263 

Landlord's Duties . 257 

Lands, Ownership in 224 

Lapse of Devises 277 

Larceny 452 

Law of the Land 308 

Lead Works 92 

Learned Professions 336 

Lease 257 

Lease, Porm of 462 

Legacy 276 

Legal Consideration 100 

Legislative Powers 306 

Legislative Proceedings 316 

Legislators 312 

Letting of Contracts 412 

Levy of Taxes 372 

Liability of Employer 52 

Liability of Principal 65 

Libel 73 

Libel and Crime 76 

Librarian of Congress 152 

License Distinguished from Easements 282 

License of Nuisances 94 

Licenses of Trades 336 

Lien of Bailee 110 

Lien of Taxes 374 

Life Estates 225, 229 



xii Index. 

Page 

Life Insurance 212 

Life Tenants, Duties of , 227 

Lighting of Streets 350 

Lime Kilns 92 

Line Fences 144 

Liquor Traffic 342 

Literary Property 150 

Lloyds' 208 

Loan Associations 195, 201 

Locality Benefited by Taxes 369 

Local Option 342 

Local Statute 314 

n 

Magazines 151 

Mails 345 

Majorities 395 

Malicious Prosecution 72 

Mandamus 418 

Mandatory Statute 314 

Manslaughter , . . . t 449 

Manure 222 

Margins 173 

Marine Insurance 214 

Mark 246 

Marriage 34 

Marriage Contracts 35 

Marriage, Effect of on Wills 275 

Marriage, What Constitutes 35 

Master's Duty to Servants 46 

Maxims in Equity » 430 

Measure of Damages Ill, 112, 113 

Meeting of Minds 98 

Meetings, Organization of 316 

Metes and Bounds 249 

Milk 336 

Minerals 221 

Ministers 312 

Ministerial Officers 404 

Minors, State Control of 335 

Misdescription 131 

Misrepresentation 85 

Mistake, Belief from in Equity 433 



Index. xiii 

Page 

Money 195, 222 

Monopolies 107 

Moral Obligations 382 

Mortgages 245, 249 

Mortgage Bond 250 

Mortgage Bonds 175 

Mortgage Deeds of Trust . . 176 

Mortgage of Crops 262 

Mortgage, Form of 463 

Motions 317 

Motive 22 

Municipal Contracts 409 

Municipal Contracts, Bids for 412 

Municipal Corporations 407 

Municipal Franchises 351 

Municipal Ordinances 341 

Municipal Officers . . 412 

Municipal Property 411 

Municipal Securities 410 

Murder 449 

Mutual Life Insurance 213 

N 

National Banks 199 

National Boundaries 295 

National Loan Associations 203 

National Powers 306 

Naturalized Citizens 308 

Navigable Waters 295 

Necessaries 26 

Negligence 77 

Negligence in Keeping Animal 146 

Negotiable Paper . . , 178, 181 

Newspapers 151 

Newspaper Reports 76 

Next of Kin 216, 270 

Nominations 392 

Notes 178, 184 

Notice 434 

Notice of Defects in Highways 290 

Notice to Agents 65 

Notice to Tenant 256 

Novel 152 

Nuisances 87 



xiy Index. 

O Page 

Oaths of Public Officers 403 

Oaths of Witnesses 428 

Objections 318 

Obligation 98 

Obstructions to Highways 289, 291 

Ocean " 295 

Office Holders, Eights of 399 

Oleomargarine 336 

Open Policy, Insurance 207 

Ordinances 20, 341 

Ordinances of Municipalities 408 

Organization of Meetings 316 

Ownership of Lands 224 

Oxen 146 

Oysters 140 

P 

Parents 24 

Parliamentary Proceedings 316 

Parties to a Contract 105 

Partnership in Crops 267 

Partnership Property 162 

Partnerships . . . . ' 156 

Partnerships in Bankruptcy 440 

Partners, Responsibility of . . 158 

Party Walls '. 282 

Pass' Books 200 

Passengers 126 

Patentability 148 

Patents . .' 147 

Peace Officers 349 

Penal Statute 313 

Pensions 383 

Per Capita Taxes 367 

Perjury 453 

Permanent Loan Associations 203 

Piers 297 

Pleadings 416 

Plumbers 336 

Pluralities 395 

Poisoning 113 

Police Departments 349 



Index. xv 

Page 

Police Officers 349, 405 

Police Powers 334 

Police Power, Federal Exercise of 343 

Policy 207, 209 

Poll Taxes 367 

Pollution of Water 300 

Poor Laws 382, 385 

Possession in Sales 132 

Postal System 345 

Postmaster General 345 

Postmasters 121 

Post Offices 345 

Pounds 145 

Power of Attorney, Form of 457 

Powers of the Nation 306 

Powers of the Sovereign 306 

Preference 402 

Preferences Under Bankrupt Acts 443 

Preferred Questions 318 

Premiums 204 

Presentment of Notes 189 

Principals 62 

Principals in Crime 446 

Principles of Taxation 363 

Priority in Use of Water 301 

Private Nuisances 88 

Private Property Taken for Public Use 354 

Private Eights, State ^Regulation of 334 

Private Eights under the Constitution 325 

Private Statute 314 

Private Waters 297 

Privileged Questions 318 

Privilege in Slander and Libel 74 

Probate Courts 415 

Process 149 

Prohibition, Writ of 418 

Promissory Notes 178 

Property, Distribution of at Death 269 

Property in Animals 139 

Property in Brains 147 

Property of Partnership 162 

Property Eights of Office Holders 399 

Protest of Notes 189 



xvi Index. 

Pag-e 

Publication of Libel 74 

Public Corporations 406 

Public Moral Obligations 382 

Public Nuisances 87 

Public Officers 397 

Public Policy in Contract 107 

Public Policy, in Evidence 427 

Public Purpose 355 

Public Statute 314 

Public Use . . 355 

Public Use in Private Business 337 

Public Works 355 

Punishments, Cruel and Unusual 333 

Punishment of Children 30 

Purchaser 132 

Q 

Qualifications for Office 400 

Qualification of Voters 390 

Quiet Enjoyment, Warranty of 257 

Quit Claim Deed 248 

R 

Railways, Electric 352 

Railway Tracks, Cattle on 143 

Rape 454 

Ratification 58 

Real Estate 216 

Real Estate, Future Interests in 234 

Reconsideration of Votes 319 

Recording Papers 354 

Reduction of Stock 174 

Registration of Trade Marks 155 

Re-insurance 208 

Religion, Establishment of 326 

Remainders 234 

Remedial Statute 313 

Removals of Public Officers 403 

Rents 256 

Repair of Highways 289 

Repeal of Statutes 314 

Representations in Insurance 210 

Rescission of Contract Ill 



Index. xvii 

Page 

Reservations in Deeds 282 

Residence of Voters 391 

Restraint of Trade 108 

Restrictions in Deeds 282 

Retiring Partners 160 

Reversions 235 

Right to Vote 387 

Rights, Bill of 325 

Rights of Way 281 

River and Harbor Bills 311 

Rivers 295 

Road Law 291 

Robbery 453 

Rolling Stock . . . 221 

Rules of Order 316 

Rye 262 

S 

Safety of Employees 46 

'Sale, Bill of, Form 456 

Sales 129 

Sales for Taxes 378 

Salt Water 295 

Satisfaction 115 

Savings Banks 200 

Schools 346 

School Districts 347 

School Funds 348 

Seals 140 

Seal on Deed 247 

Searches 333 

Seas 295 

Second Mortgage 252 

Secretaries of Legations 312 

Secret Process 147 

Seduction 454 

Seized 247 

Seizures 333 

Seller 131 

Seller's Remedies 137 

Serial Loan Associations 202 

Servants 44 

Servant's Responsibility . . . 55 



xviii Index. 

Page 

Service of Summons 416 

Shares, Farming on 261 

Sheriffs 405 

Shores of Kivers 296 

Sidewalks 293 

Signatures 246 

Silver 195, 337 

Slander 73 

Slaughterhouses 89 

Slavery 325 

Smoke 91 

Soap Factories 92 

Soil of Hjighways 288 

Soldiers, Quartering of 326 

Sounds 295 

Sovereign Powers 306 

Special Deposits 197 

Special Partnerships 163 

Specific Performance 110, 435 

Specific Taxes 370 

Stable Keepers 142 

State Business Enterprises 345 

State Eegulation of Private Eights 334 

State Writs 418 

Statute of Frauds 255 

Statute of Frauds in Guaranty 193 

Statutes 313 

Statutes, Enactment of 321 

Stockholders 168 

Stock, Nature of 169 

Stocks 168 

Stock Subscriptions 170 

Stock, Theft of 172 

Stoppage in Transit 137 

Street Eailways 352 

Streets 293 

Strikes 339 

Subject Matter of a Contract 106 

Sub-leases 259 

Subscription for Stock 170 

Subterranean Water 303 

Sufferance, Tenancies at 256 

Summary Proceedings 260 



Index. xix 

Page 

Summons 415 

Sunday Contracts 109 

Sunday Laws 329 

Suretyship 191 

Surface Water 302 

Surrogate's Court 415 

Surveys 248 

Survivorship 243 

Sweat Shops 339 

T 

Tame Animals .' 140 

Tariff Laws, Constitutionals 310 

Tariffs ". 310 

Taxation, Principles of 363 

Taxation, Purposes of 365 

Tax Districts 373 

Taxes, Apportionment of 370 

Taxes, Direct and Indirect 363 

Taxes, Levy and Collection of 372 

Taxes on Inheritances 279 

Taxes on Land 364 

Taxes on Personal Property 364 

Tax Liens 376 

Tax Sale Deeds 379 

Tax Sales 378 

Telegrams 127 

Telephone Companies 288 

Telephones 149 

Tenancies 255 

Tenancy by the Entirety 242 

Tenancy in Common 238 

Tenant 255, 263 

Tenant's Duties 257 

Tenure of Office 404 

Terminating Loan Associations 202 

Termination of Tenancy 263 

Testamentary Capacity 271 

Testaments 271 

Thoroughfares 285 

Tidal Eivers 295 

Tide Water 295 

Title of Statute 314 



xx Index. 

Page 

Title, Passing of 134 

Title to Crops 264 

Title, Who can give 134 

Toll Bridges 293 

Toll Gates 292 

Toll Roads 292 

Torts 67 

Town Bonds 410 

Towns 406 

Traction Companies 351 

Trade Marks 154 

Trade, Restraint of 107 

Trades and Professions 335 

Transfers of Negotiable Paper 187 

Transfers of Stock 171 

Treason 448 

Treaties 20, 307 

Trees 220, 262 

Trespass 77, 82 

Trespasses by Cattle 145 

Trials 417 

Trustee for Bondholders 176 

Trustee Process 421 

Trust Companies 201 

Trusts 339 

Trusts, Commercial 167 

Trusts in Partnership 161 

Truth in Libel 74 

Turnpikes 292 

U 

Unconstitutional Laws 332 

Undisclosed Principals 65 

Undue Influence 274 

United States Courts 413 

V 

Valued Policy, Insurance . ' 207 

Vehicles 291 

Vessels 295 

Veterans, Preference of 402 

Veto of Statutes 322 

Veto Power 306, 312 



Index. xxi 

Page 

Village By-laws 408 

Vinegar 337 

Void Marriages 38 

Voluntary Bankruptcy 439 

Votes at Meetings 3 19 

Voting 387, 394 

W 

Wage Contracts 45 

Wager Contracts in Stock 173 

Wages 26, 109, 338 

Waivers by Insurance Agents 211 

Walls . . .' 282 

Wards 31 

Warehousemen 120 

Warranties 135 

Warranties in Insurance 210 

Warranty Deeds 247 

Waste .'. 239 

Water and Water Courses 295 

Water, Domestic Use of 298 

Watered Stock 169 

Water Works 350 

Ways 285 

Weights and Measures 337 

Wharves 295 

Wheat 262 

White Lists 341 

Wife 34 

Wife's Necessaries 42 

Wild Animals 139 

Will, Form of 458 

Will, Sample of 458 

Wills 271 

Withdrawals 203 

Witnesses to Wills 277 

Workmen 46 

Writs 418 

Written Contracts 103 

Wrongs 67 



H 101 84 







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